Sowell v. Martinez ( 2014 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 WAYNE SOWELL, ROSE MARIE LAW,
3 KENNETH BORREGO, and KATHLEEN
4 O’DEA,
5 Petitioners-Appellees,
6 v. NO. 33,155
7 MARCELINA MARTINEZ,
8 Respondent-Appellant.
9 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
10 Francis J. Mathew, District Judge
11 Montgomery & Andrews, PA
12 Dakotah Benjamin
13 Santa Fe, NM
14 for Appellees
15 Marcelina Martinez
16 Santa Cruz, NM
17 Pro Se Appellant
1 MEMORANDUM OPINION
2 KENNEDY, Chief Judge.
3 {1} Marcelina Martinez (Respondent) appeals from a district court order declaring
4 her commercial lien to be a non-consensual common law lien1 and voiding and
5 releasing said lien pursuant to the Lien Protection Efficiency Act (LPEA), NMSA
6 1978, §§ 48-1A-1 to -9 (1999). [DS 3; RP 47-48] This Court issued a calendar notice
7 proposing summary affirmance. Respondent filed a memorandum in opposition to
8 this Court’s notice of proposed disposition, which we have duly considered.
9 Unpersuaded, we affirm.
10 {2} In our calendar notice, we proposed to hold that the district court did not err in
11 determining that Respondent failed to meet her burden to show cause as to why the
12 lien should not be stricken, and why she should not be liable for costs and fees under
13 Section 48-1A-9. [CN 4] We based this proposed conclusion on the fact that
14 Respondent does not claim that the lien in this case is statutorily or judicially created,
15 but rather that the lien is “consensual.” [CN 3] We noted that the only assertions to
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16 Under Section 48-1A-3(E) of the LPEA, a “‘non[-]consensual common law
17 lien’ means a document, regardless of self-description, that purports to assert a lien
18 against the assets, real or personal, of a person that: (1) is not expressly provided for
19 by a specific state or federal statute; (2) does not depend upon the consent of the
20 owner of the property affected or the existence of a contract for its existence; or (3)
21 is not an equitable or constructive lien imposed by a court of competent
22 jurisdiction[.]”
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1 support Respondent’s consensual lien argument were a series of inapposite definitions
2 and “maxims of law.” [CN 3] In her memorandum in opposition, Respondent has
3 provided a more fully developed argument as to why the lien filed in this case should
4 be considered to be consensual and thus outside of the definition of a non-consensual
5 common law lien under the LPEA. However, we remain unconvinced that the lien is
6 in fact consensual.
7 {3} First, Respondent contends that Petitioners’ non-response to a series of mailings
8 and filings she describes as an “administrative process” constitutes consent on the part
9 of Petitioners to her commercial lien in the amount of two million eight hundred forty
10 thousand dollars. [MIO 15-17; RP 11] Specifically, Respondent states that she
11 provided Petitioners with an “Affidavit of Truth” via certified mail, [MIO 6-7; RP 12],
12 containing facts that she alleges to be “violations of the constitution and various laws
13 and statutes[.]” [MIO 7] After receiving no response from Petitioners, Respondent
14 subsequently filed with the county clerk an “Affidavit of Non-Response” [RP 14] and
15 an “Affidavit of Obligation Commercial Lien.” [MIO 7; RP 4] The “Affidavit of
16 Non-Response” states that “[a]ll terms, conditions, allegations, true bills, ledgers, etc.,
17 are now affirmed by [Petitioners] by tacit procuration[.]” [RP 14] Because this
18 argument was not well developed in Respondent’s docketing statement, we proposed
19 to hold in our calendar notice that we were not persuaded by Respondent’s bare
20 assertion that a lien arising in such a manner is consensual in the absence of
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1 supporting legal authority. [CN 4] Respondent acknowledges that our proposed
2 disposition depended in large part on the lack of legal authority to support this
3 contention, but continues to argue that “[t]he only legal authority she could show was
4 evidence that Petitioners did not dispute the facts.” [MIO 21] Similarly, Respondent
5 claims that “the contract . . . was created via legitimate administrative process” [MIO
6 21] and states that the “lien is no different than any other contract create[d] by lack of
7 response.” [MIO 22] Respondent cites to a number of out-of-jurisdiction cases in her
8 memorandum in opposition that do not support her legal theory described above.
9 [MIO 15-17] “[C]ases are not authority for propositions not considered.” Fernandez
10 v. Farmers Ins. Co. of Ariz., 1993-NMSC-035, ¶ 15, 115 N.M. 622, 857 P.2d 2211 (internal quotation marks and citation omitted). Where a party cites no authority to
12 support an argument, we may assume no such authority exists. In re Adoption of Doe,
13 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329. Therefore, we remain
14 unconvinced that a lien arising in such a manner is consensual.
15 {4} Second, Respondent contends that the lien is “based on non-judicial principals
16 and is a commercial, common law remedy that is not intended to be adjudicated in a
17 statutory court.” [MIO 9] Respondent chose this remedy to cure alleged “violations
18 of the constitution and various laws and statutes” by Petitioners. [MIO 7]
19 Respondent’s characterization of the lien as a remedy weighs squarely against her
20 contention that the lien was consensual. The simple fact that Respondent may have
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1 believed that she would be unsuccessful in a breach of contract claim [MIO 13] or tort
2 action [MIO 14] does not somehow convert her lien into one based on consent. Thus,
3 we hold that non-response to an individual’s self-created “administrative process”
4 does not constitute consent to having a lien placed on one’s real or personal property.
5 {5} Third, Respondent argues that the burden was on Petitioners to prove that the
6 lien fell within the definition of a non-consensual common law lien under the LPEA
7 and that Petitioners failed to do so. [MIO 8, 10] However, the very nature of the
8 statutory scheme demonstrates that once Petitioners petitioned the district court for an
9 order to show cause, the burden was on Respondent to show cause why the lien should
10 not be stricken. See § 48-1A-8(A) (“A person whose real or personal property is
11 subject to a recorded claim of a non[-]consensual common law lien and who believes
12 the claim is invalid may petition the district court . . . for an order . . . directing the lien
13 claimant to appear before the district court . . . and show cause, if any, why the . . . lien
14 should not be stricken and other relief provided for by Section [48-1A-9] of the
15 [LPEA] should not be granted.”). We are not convinced otherwise by the cases cited
16 by Respondent, both of which dealt with the burden of production in the summary
17 judgment context. See Fernandez, 1993-NMSC-035, ¶ 15 (“[C]ases are not authority
18 for propositions not considered.” (internal quotation marks and citation omitted)).
19 {6} Finally, Respondent’s memorandum in opposition contends that she was
20 entitled to a jury at the show cause hearing. [MIO 10] We note, however, that this
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1 argument was not raised in Respondent’s docketing statement, and she did not move
2 to amend the docketing statement to add this issue. See Rule 12-208(F) NMRA
3 (permitting the amendment of the docketing statement based upon good cause shown);
4 State v. Rael, 1983-NMCA-081, ¶¶ 15-16, 100 N.M. 193, 668 P.2d 309 (setting out
5 requirements for a successful motion to amend the docketing statement). The essential
6 requirements to show good cause for our allowance of an amendment to an appellant’s
7 docketing statement are (1) the motion be timely, (2) the new issue sought to be raised
8 was either properly preserved below or allowed to be raised for the first time on
9 appeal, and (3) the issues raised are viable. See State v. Moore, 1989-NMCA-073, ¶
10 42, 109 N.M. 119, 782 P.2d 91, overruled on other grounds by State v. Salgado, 1991-
11 NMCA-044, ¶ 2, 112 N.M. 537, 817 P.2d 730.
12 {7} To the extent that we might construe the addition of this argument as a motion
13 to amend the docketing statement, Respondent has failed to demonstrate that she
14 meets the requirements for granting a motion to amend. First, Respondent’s
15 memorandum in opposition does not explain how this issue was preserved in the
16 district court. See Rael, 1983-NMCA-081, ¶ 15 (requiring a motion to amend the
17 docketing statement to include those issues sought to be added and “how they were
18 preserved” or showing “why they did not have to be preserved”). There does not
19 appear to be anything regarding a jury demand anywhere in the record proper. Second,
20 we are not convinced that the right to a jury attaches to a show cause hearing, which
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1 impacts the viability of this issue. Therefore, because Respondent did not satisfy the
2 requirements to amend the docketing statement, we decline to consider the issue of
3 whether she was entitled to a jury at the show cause hearing.
4 CONCLUSION
5 {8} For the reasons stated above, as well as those provided in our calendar notice,
6 we affirm.
7 {9} IT IS SO ORDERED.
8 ____________________________________
9 RODERICK T. KENNEDY, Chief Judge
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1 WE CONCUR:
2 ___________________________
3 JONATHAN B. SUTIN, Judge
4 ___________________________
5 J. MILES HANISEE, Judge
8