City of Artesia v. Billips

This memorandum opinion was not selected for publication in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 CITY OF ARTESIA, 3 Plaintiff-Appellee, 4 v. No. 31,622 5 HONDO BILLIPS, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 8 Jane Shuler-Gray, District Judge 9 Viola Rhodes 10 Artesia, NM 11 for Appellee 12 Hondo Billips 13 Artesia, NM 14 Pro se Appellant 15 MEMORANDUM OPINION 16 BUSTAMANTE, Judge. 1 Defendant appeals, pro se, from a district court order finding him guilty of 2 violating the minimum financial responsibility act and failing to display a current 3 valid registration plate. We issued a calendar notice proposing to affirm. Defendant 4 has responded with a memorandum in opposition. Not persuaded that our proposed 5 disposition was incorrect, we affirm. 6 Defendant continues to allege that certain errors occurred in the municipal court 7 proceedings. However, as we observed in our calendar notice, Defendant appealed 8 [RP 1] his municipal court judgment [RP 3] to district court, where he received a de 9 novo trial pursuant to Rule 7-703(J) NMRA. [RP 92] A trial de novo is a trial 10 “anew,” as if the original proceeding had not occurred. NMSA 1978, § 39-3-1 (1955); 11 see City of Farmington v. Sandoval, 90 N.M. 246, 248 , 561 P.2d 945, 947 (Ct. App. 12 1977) (“A trial de novo is a trial ‘anew’, as if no trial whatever had been had in the 13 municipal court.”). It follows that this Court, sitting in its appellate capacity, is 14 limited to a review of the district court proceedings. We therefore do not consider any 15 claims of error in the municipal court. 16 In his memorandum in opposition [MIO 2], Defendant cites Tsiosdia v. 17 Rainaldi, 89 N.M. 70 , 547 P.2d 553 (1976), for the proposition that he was entitled 18 to due process and a fair hearing in both tribunals. Defendant correctly observes that 19 Tsiosdia affirmed these basic principles. Id. at 74, n. 7 , 547 P.2d at 557 . However, [2] 1 Tsiosdia involved the use of a writ of prohibition to directly challenge the lower court 2 proceedings; the fact that the party could have instead pursued a de novo trial in 3 district court did not preclude its challenge to the lower court proceeding. Id. at 71 , [4] 547 P.2d at 554 . Here, if Defendant believed that his due process rights were being 5 violated in the municipal court proceedings, he needed to have sought a direct 6 challenge by invoking a higher court’s power to issue a writ to correct the alleged 7 error. Defendant did not directly challenge the municipal court by writ. Instead he 8 chose the normal appellate route and received a new trial. We therefore conclude that 9 he waived any other challenge to the municipal court proceeding. 10 For the reasons stated above, and those stated in our notice, we affirm. 11 IT IS SO ORDERED. [12] 13 MICHAEL D. BUSTAMANTE, Judge 14 WE CONCUR: [15] 16 MICHAEL E. VIGIL, Judge [17] 18 J. MILES HANISEE, Judge