Standage Farms v. Lusk Onion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 STANDAGE FARMS, INC., 8 Plaintiff-Appellee, 9 v. NO. 30,912 10 LUSK ONION, INC., 11 Defendant-Appellant. 12 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 13 David P. Reeb, Jr., District Judge 14 Law Office of George Dave Giddens, P.C. 15 Denise Trujillo 16 Albuquerque, NM 17 for Appellee 18 Behles Law Firm, P.C. 19 Eric N. Ortiz 20 Jennie Deden Behles 21 Albuquerque, NM 22 for Appellant 23 MEMORANDUM OPINION 24 VIGIL, Judge. 1 Defendant has appealed from the district court’s order denying its motion to 2 stay registration and enforcement of a foreign judgment. Defendant also filed a 3 motion in this Court to stay the judgment or alternatively set a value for bond under [2] 1 Rule 1-062 NMRA. We issued an order holding the motion in abeyance pending 2 calendaring because it was not clear to this Court that Defendant’s appeal was from 3 a final, appealable order. Defendant filed a docketing statement in this Court and the 4 record proper, but did not specifically address any of the finality concerns we 5 expressed in our order. Still unconvinced that the order refusing to stay registration 6 of the foreign judgment was final and appealable, we issued a notice of proposed 7 summary disposition, proposing to dismiss for lack of finality. Defendant filed a 8 response to our notice and persuaded us that the district court’s order was sufficiently 9 final and that the district court’s ruling was erroneous. We were not persuaded, 10 however, that the district court improperly denied Defendant’s motion for stay, and 11 we refused to set a bond amount. We issued a second notice of proposed summary 12 disposition, proposing to reverse and to deny the motion for stay. 13 Plaintiff filed a response to our second notice proposing reversal, arguing that 14 our first notice was correct and the district court’s order is non-final and opposing 15 summary reversal. Defendant filed a memorandum in reply to Plaintiff’s response and 16 also continues to argue that the district court improperly denied its motion for stay. 17 We have considered the parties’ responses. We remain persuaded that the district 18 court did not err by refusing to stay the judgment pending appeal. Therefore, we deny 19 Defendant’s motion for stay or set a bond amount filed in this Court on December 15, [3] 1 2010. We also remain persuaded that the district court’s order is sufficiently final for 2 appeal and that the district court erred. Therefore, we reverse the district court and 3 remand for consideration of the jurisdictional matter on the merits. 4 Finality 5 In response to our second notice, Plaintiff argues that our first notice was 6 correct in proposing to hold that the district court’s order denying Defendant’s motion 7 to stay domestication or to vacate the foreign judgment was non-final. Plaintiff agrees 8 that the district court’s order did not contain the requisite decretal language and did 9 not require the parties to take any further action. [Plaintiff’s MIO to 2nd CN 1] 10 Plaintiff does not assert, however, that it cannot now enforce the foreign judgment 11 against Defendant since the district court refused to stay it. Also, Plaintiff does not 12 refer us to any authority that addresses the statutory grounds we relied upon in our 13 second notice. Without authority and without any indication from Plaintiff about what 14 else is required for Plaintiff to pursue the money judgment against Defendant, we 15 believe that the district court’s order is sufficiently final for appeal. 16 Motion for Stay or Set Bond Amount 17 As we have stated, Defendant moved for stay of judgment in district court and 18 seeks review of the district court’s denial of the stay in this Court pursuant to Rule 12- 19 207 NMRA. “Although a stay pending appeal is a substantive right, this right is [4] 1 contingent upon the appellant posting a satisfactory bond. The posting of the bond is 2 the procedural mechanism by which an appellant secures the right to stay.” Grassie 3 v. Roswell Hosp. Corp., 2008-NMCA-076, ¶ 8 , 144 N.M. 241 , 185 P.3d 1091 . 4 Defendant did not post a supersedeas bond. Therefore, we cannot say that the district 5 court erred by denying Defendant’s motion for stay. Also, it is not our role to 6 determine the appropriate bond amount for Defendant to post in district court. See, 7 e.g., Rule 1-062(D) (“The stay is effective when the supersedeas bond is approved by 8 the district court.”). Defendant has not referred this Court to any authority to support 9 a stay without the posting of a bond or to support our authority determine the 10 appropriate bond amount. As a result, Defendant’s motion for stay is hereby denied. 11 Jurisdictional Issue 12 In response to our second notice, Plaintiff states that it disagrees with Defendant 13 that the district court refused to consider Defendant’s jurisdictional challenge to the 14 foreign judgment on its merits. [Plaintiff’s MIO to 2nd CN 2-3] Plaintiff asserts that 15 at the hearing on the motion to stay registration of the foreign judgment, Plaintiff 16 presented evidence of the affidavit of service and summons, showing that Defendant 17 was personally served with the complaint and had sufficient time to object to 18 jurisdiction. [Id. 2] Also, Plaintiff asserts that it presented evidence [5] 1 to the district court that, under Oregon rules, personal jurisdiction over Defendant was 2 proper in Oregon due to the fact that the act arose out of a promise by Defendant to 3 deliver goods or receive goods in Oregon. [Id. 2] 4 Based on the arguments in Plaintiff’s pleadings, the arguments revealed by the 5 short tape log, and the district court’s bare order, we are persuaded that the district 6 court did not rule on Defendant’s challenge to the foreign judgment on the grounds 7 of fraud and lack of jurisdiction. [RP 33-40, 60-62, 64] See State v. Calanche, 91 8 N.M. 390 , 392, 574 P.2d 1018, 1020 (Ct. App. 1978) (stating that factual recitations 9 in the calendaring documents filed in this Court are accepted as true unless the record 10 on appeal shows otherwise). We are persuaded that the district court ruled on the 11 grounds argued by Plaintiff—that Defendant cannot collaterally attack the Oregon 12 judgment and should have asserted its defenses in the Oregon court. [RP 36-39, 61- 13 62] We agree with Defendant that Plaintiff and the district court were incorrect. 14 Fraud and lack of jurisdiction are two grounds on which a party may collaterally 15 attack a foreign judgment and “destroy the full faith and credit owed a foreign 16 judgment.” Jordan v. Hall, 115 N.M. 775, 778 , 858 P.2d 863, 866 (Ct. App. 1993). 17 As we stated in our notice, not all foreign judgments are entitled to full faith and 18 credit. See Conglis v. Radcliffe, 119 N.M. 287, 289 , 889 P.2d 1209, 1211 (1995). A 19 judgment debtor may collaterally attack the validity of a foreign judgment “on one of [6] 1 the grounds that justifies the denial of full faith and credit, such as lack of jurisdiction, 2 lack of due process, or extrinsic fraud.” Id. In Conglis, our Supreme Court expressly 3 stated that 4 in any effort to avoid enforcement of a judgment filed pursuant to 5 Section 39-4A-3, a judgment debtor is limited to grounds traditionally 6 recognized as sufficient to avoid the res judicata effect of a foreign 7 judgment; for example, lack of subject matter or personal jurisdiction of 8 the rendering court, lack of due process, fraud in procurement (extrinsic 9 fraud), or other grounds making the judgment invalid or unenforceable. [10] Id. (emphasis added). 11 In district court, Defendant moved to vacate the default judgment entered by the 12 Oregon court for lack of personal jurisdiction and fraud, alleging specific facts to 13 support these claims. [RP 24-26, 47-59] See id. (stating that in order to have a 14 hearing on the substance of a claim that foreign judgment should be set aside, the 15 judgment debtor “must set forth a credible factual basis to support the asserted legal 16 basis upon which the debtor seeks to avoid the enforcement of the judgment”). The 17 tape log shows that, at the hearing, the district court did not reach the merits of 18 Defendant’s defenses and ruled that Defendant should have asserted the defenses to 19 the Oregon court. [RP 61-62] Because fraud and lack of jurisdiction are two grounds 20 on which a party may collaterally attack a foreign judgment, we reverse and remand 21 for the district court to consider the merits of Defendants’ defenses. See Jordan, 115 22 N.M. at 778, 858 P.2d at 866 . [7] 1 IT IS SO ORDERED. 2 _______________________________ 3 MICHAEL E. VIGIL, Judge 4 WE CONCUR: 5 _________________________________ 6 CELIA FOY CASTILLO, Chief Judge 7 _________________________________ 8 TIMOTHY L. GARCIA, Judge