Robinson v. Brito ( 2017 )

This memorandum opinion was not selected for publication in the New Mexico Appellate 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Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum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 CAROLE ROBINSON,
3 Petitioner/Cross-Appellee-Appellant,
4 v. No. A-1-CA-36061
5 MARTY BRITO and MONICA BRITO,
6 Respondents/Cross-Appellants-Appellees.
7 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
8 Sarah M. Singleton, District Judge
9 Robert Richards
10 Santa Fe, NM
11 for Appellant
12 Marty Brito
13 Monica Brito
14 Santa Fe, NM
15 Pro Se Appellees
16 MEMORANDUM OPINION
17 HANISEE, Judge.
18 {1} Petitioner Carole Robinson appeals from the district court’s order awarding her
19 attorney fees on October 26, 2016. [DS 1; 3 RP 481] This Court first issued a notice
1 proposing to dismiss for lack of a final order. Following Robinson’s withdrawal of her
2 motion to reconsider pending before the district court, this Court issued a second
3 notice of proposed disposition addressing the merits of Robinson’s appeal and
4 proposing to affirm. Robinson filed a memorandum in opposition, which we have duly
5 considered. Remaining unpersuaded, we affirm.
6 {2} In our notice of proposed disposition, we addressed four central contentions
7 raised by Robinson’s numerous issues: (1) the district court’s determinations
8 underlying the attorney fees award were erroneous; (2) the district court erred in
9 refusing to allow Robinson to submit a bill for legal services to provide an itemization
10 of her fees and costs after the district court entered its order; (3) the district court erred
11 in the amount of attorney fees it awarded; and (4) the district court erred in
12 determining the amount of attorney fees awarded to Lexus of Santa Fe (Garnishee),
13 for which Robinson was partially responsible. [CN 4; see DS 13-15] Addressing the
14 first three issues together, we proposed to conclude Robinson had not demonstrated
15 the district court abused its discretion in awarding Robinson a lower amount of
16 attorney fees than she sought because Robinson’s contrary assertions and reliance on
17 her withdrawn motion to reconsider and an itemization of costs do not show the
18 district court’s findings underlying the fee award were not supported by substantial
19 evidence. [CN 4-7] In her response, Robinson continues to make contrary assertions
2
1 regarding the district court’s assessment of Robinson’s motivation for declining a
2 settlement offer; the value of pleadings Robinson filed, in light of her successful
3 motion for summary judgment; and the district court’s motivation in awarding
4 Robinson a lesser award of attorney fees than she requested. [MIO 1, 4, 5] As we
5 noted in our proposed disposition, “[a]n abuse of discretion occurs when a ruling is
6 clearly contrary to the logical conclusions demanded by the facts and circumstances
7 of the case. The evidence is viewed in the light most favorable to the ruling of the
8 district court.” Gilmore v. Gilmore, 2010-NMCA-013, ¶ 24, 147 N.M. 625, 227 P.3d
9 115 (citations omitted); see also State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438,
10 971 P.2d 829 (stating contrary evidence supporting a different result does not provide
11 a basis for reversal because the fact-finder is free to reject that version of the facts).
12 Under the standard and in light of the record before us, we conclude Robinson’s
13 continued assertion of contrary facts does not provide a basis for reversal of the
14 attorney fee award.
15 {3} Robinson also continues to argue the district court erred in refusing to consider
16 her itemization of fees and costs submitted after entry of the order awarding attorney
17 fees and Robinson’s motion for reconsideration and notice of appeal. [MIO 10, 13, 14]
18 Robinson asserts this Court should consider her motion for reconsideration and
19 itemization of fees and costs in reviewing the award of attorney fees, even though the
3
1 motion to reconsider was later withdrawn, because Robinson fairly invoked rulings
2 by the district court. [MIO 7] Notwithstanding the fact Robinson withdrew her motion
3 from the district court’s consideration, we note a district court may properly refuse to
4 consider evidence in a motion to reconsider that could have been, but was not,
5 included in the original motion. See Deaton v. Gutierrez, 2004-NMCA-043, ¶¶ 9-10,
6 135 N.M. 423, 89 P.3d 672. We therefore conclude the district court did not err in not
7 considering Robinson’s assertions in her motion to reconsider and itemization of fees
8 and costs, and we decline to address in the first instance the assertions made in those
9 pleadings.
10 {4} Robinson further continues to argue the district court erred in not awarding her
11 all of her requested attorney fees based on her failure to provide sufficient detail about
12 the costs and fees. Robinson contends she followed the same procedure as Garnishee,
13 which received all of its requested fees, by filing an affidavit by her attorney. In
14 support of this argument, Robinson asserts the method by which Garnishee requested
15 attorney fees became the law of the case, and she was treated unfairly when she did
16 not receive her full requested amount using the same procedure Garnishee used. [MIO
17 8-9, 16] We are unconvinced the law of the case doctrine is applicable here, and
18 Robinson does not demonstrate how it is applicable, beyond merely asserting it
19 applies. See Bank of New York v. Romero, 2016-NMCA-091, ¶ 9, 382 P.3d 991 (“The
4
1 law of the case doctrine is a matter of precedent and policy; it is a determination that,
2 in the interests of the parties and judicial economy, once a particular issue in a case
3 is settled it should remain settled.” (internal quotation marks and citation omitted));
4 Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d
5 1076 (“We will not review unclear arguments, or guess at what [a party’s] arguments
6 might be.”). We therefore conclude the law of the case doctrine does not provide a
7 basis for reversal of the attorney fee award.
8 {5} In addressing Robinson’s fourth issue, we proposed to conclude the district
9 court did not abuse its discretion in requiring Robinson to pay half of the attorney fees
10 incurred by Garnishee in defending Robinson’s garnishment petition because
11 Garnishee was entitled to recover attorney fees pursuant to NMSA 1978, Section 35-
12 12-16(B) (1977); Robinson had agreed Garnishee was entitled to reasonable attorney
13 fees; and Robinson failed to articulate why the award was an abuse of discretion. [CN
14 7-8] In her memorandum in opposition, Robinson no longer argues she should not be
15 responsible for half of Garnishee’s attorney fees and instead asserts she should recover
16 additional attorney fees sufficient to cover the attorney fees she owes to Garnishee
17 because the debt owed to Garnishee constitutes a cost. [MIO 16] In support of this
18 proposition Robinson first cites Rule 12-403(B)(3) NMRA, which states allowable
19 costs may include “reasonable attorney fees for services rendered on appeal in causes
5
1 where the award of attorney fees is permitted by law[.]” Robinson next cites Valley
2 Improvement Ass’n v. Hartford Accident and Indemnity Co., 1993-NMSC-061, ¶ 17,
3 116 N.M. 426, 863 P.2d 1047, in which our Supreme Court held the district court’s
4 failure to quantify an award of damages rendered the judgment non-final. Neither of
5 the authorities Robinson cites is applicable to her argument she should be able to
6 recover a greater award of attorney fees to cover a debt of attorney fees she owes. We
7 therefore conclude Robinson was not entitled to recover attorney fees to cover the
8 attorney fees she owes Garnishee.
9 {6} Finally, we note Robinson argues for the first time in her memorandum in
10 opposition the district court improperly denied her the opportunity to review the order
11 awarding attorney fees and erred in failing to rule on the motion for reconsideration
12 within sixty days. [MIO 6] We construe these arguments as a motion to amend the
13 docketing statement. The essential requirements to show good cause to grant a motion
14 to amend a docketing statement are: (1) the motion be timely, (2) the new issue sought
15 to be raised was either (a) properly preserved below or (b) allowed to be raised for the
16 first time on appeal, and (3) the issues raised are viable. See State v. Moore,
17 1989-NMCA-073, ¶ 42, 109 N.M. 119, 782 P.2d 91, superceded by rule on other
18 grounds as stated in State v. Salgado, 1991-NMCA-044, 112 N.M. 537, 817 P.2d 730.
6
1 For the following reasons, we deny Robinson’s motion to amend the docketing
2 statement because the issues raised are not viable appellate issues.
3 {7} In support of the argument the district court denied her an opportunity to object
4 to the order awarding attorney fees, Robinson cites Rule 1-054(D)(4) NMRA, which
5 addresses the procedure for entry of an order on recovery of costs. [MIO 6] However,
6 Robinson’s issues on appeal relate to only the award of attorney fees, not costs. [See
7 DS 13-15] And as we noted above, Robinson has not demonstrated why the fees she
8 owes Garnishee could be classified as a cost. We therefore conclude the time limit for
9 entry of an order under Rule 1-054.1is not applicable, and this issue is not viable.
10 {8} Robinson also argues the district court erred in failing to timely rule on her
11 motion for reconsideration. However, as we previously noted, Robinson has
12 withdrawn her motion for reconsideration. Thus, any assertion of error regarding the
13 timely disposition of her motion is moot. “A reviewing court generally does not
14 decide academic or moot questions.” Crutchfield v. N.M. Dep’t of Taxation &
15 Revenue, 2005-NMCA-022, ¶ 36, 137 N.M. 26, 106 P.3d 1273. Therefore, we
16 conclude this is not a viable appellate issue.
17 {9} Accordingly, for the reasons explained in this Court’s second notice of
18 proposed disposition and above, we deny Robinson’s motion to amend the docketing
19 statement and affirm.
7
1 {10} IT IS SO ORDERED.
2 _____________________________
3 J. MILES HANISEE, Judge
4 WE CONCUR:
5 __________________________________
6 TIMOTHY L. GARCIA, Judge
7 __________________________________
8 JULIE J. VARGAS, Judge
8