Johnson v. Southwestern Catering Corp. , 99 N.M. 564 ( 1983 )

OPINION

HENDLEY, Judge.

Southwestern Catering Corporation appeals an adverse ruling by the district court, in an appeal from the metropolitan court, pursuant to § 34-8A-6{C), N.M.S.A.1978 (1981 Repl.Pamph.), in a civil action. The dispositive issue relates to the standard of review to be used by the district court pursuant to N.M.R. Metro.P. 76, N.M.S.A.1978 (1981 Repl.Pamph.).

Southwestern Catering Corporation, prior to submission, filed a motion to strike a part of appellees’ answer brief. Because of our disposition of the cause in Southwestern Catering Corporation’s favor, we need not discuss the motion, and it is denied.

Standard of Review.

This is a question of first impression and must be decided by interpreting the applicable statutes and rules.

Sections 34-8A-6(B), (C) and (D) state:

B. The metropolitan court is not a court of record with respect to criminal actions. The metropolitan court is a court of record with respect to civil actions.

C. Any person aggrieved by any judgment rendered by the metropolitan court may appeal to the district court of the county in which such judgment has been rendered within fifteen days after entry of the judgment. All criminal trials upon appeal from the metropolitan court shall be de novo unless otherwise specified by supreme court rule.'

D. Any person aggrieved by any decision of the metropolitan court with respect to a civil action may appeal to the district court of the county in which the decision has been rendered, or order or judgment made, by filing within fifteen days of the entry of same a notice of appeal with the clerk of the district court, and the manner and method for such appeal shall be set forth by rules of the supreme court.

Appeals from the district court shall be allowed as in other civil action [actions]. (Emphasis added.)

Only civil actions in the metropolitan court are of record. What is the scope of review when there is an appeal from the metropolitan court to the district court?

Metropolitan Court Rule 76 states:

Appeals; review; civil cases.

Upon the appeal to the district court, no additional evidence shall be heard and the transcript of the proceedings taken in the metropolitan court and the record proper shall be the record for review by the district court. To preserve a question for review it must appear that a ruling or decision by the metropolitan court was fairly invoked, but formal exceptions are not required. It is not necessary to file a motion for a new trial, nor are findings of fact or conclusions of law by the metropolitan court or requested findings of fact and conclusions of law by a party necessary to preserve questions for review. The absence of an objection to a ruling or order at the time it is made shall not prevent it from being raised on appeal. In its review on appeal, the district court may affirm, modify, reverse or set aside the judgment or order from which the appeal is taken. (Emphasis added.)

This section is phrased in terms of a “review” of the record. This is nothing more than what an appellate court does on appeal. The fact that “the district court may affirm, modify, reverse or set aside the judgment” does not mean that the district court may decide the appeal independent of the finding of the metropolitan court. The rule of review is one of substantial evidence to support the finding of the metropolitan court in accordance with the applicable law. This is also apparent when N.M.R. Metro.P. 73, 74, 75, 76, 77 and 78, N.M.S.A.1978 (1981 Repl.Pamph.), are compared with N.M.R. Civ.App. 7, 8, 9 and 11, N.M.S.A.1978 (1982 Cum.Supp.). Both sets of rules speak in similar terms.

A further reason for the standard of review to be one of substantial evidence is that the metropolitan court judges are required to be “a member of the bar of and has practiced in this state for a period of three years.” See § 34-8A-4, N.M.S.A. 1978 (1981 Repl.Pamph.). This is similar to the requirements, except for age, of the supreme court, court of appeals, and district court judges. See N.M. Const, art. VI, §§ 8, 14 and 28. For this reason we feel the supreme court was recognizing a distinction as is shown by the civil and criminal appellate rules from magistrate court to the district court. See N.M.Magis.R.Civ.P. 37, N.M.S.A.1978 (1982 Repl.Pamph), and N.M.Magis.R.Crim.P. 41, N.M.S.A.1978 (1982 Supp.). Section 35-13-2, N.M.S.A. 1978 (1982 Cum.Supp.), requires that both civil and criminal magistrate appeals to the district court shall be de novo. Magistrates are not required to have the same qualifications as a metropolitan court judge. See § 35-2-1, N.M.S.A.1978, and its amendment in the 1982 Cumulative Supplement, which exempts membership in the bar and three-year practice requirements for cities with a certain population.

We hold that the standard of review to be applied by the district court is one of substantial evidence to support the finding of the metropolitan court. See Tapia v. Panhandle Steel Erectors Company, 78 N.M. 86, 428 P.2d 625 (1967); Stewart v. Barnes, 80 N.M. 102, 451 P.2d 1006 (Ct.App.1969).

The cause is reversed and remanded to the district court to review the record in conformity with this opinion.

Reversed and remanded.

IT IS SO ORDERED.

LOPEZ, J., concurs. NEAL, J., dissents.