D Martinez v. D Masseri ( 2009 )

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 DANIEL GABINO MARTINEZ and
3 STEPHANY HALENE MARTINEZ,
4 Plaintiffs-Appellants,
5 v. NO. 29,040
6 DORDANE MASSERI and WELLS FARGO
7 BANK,
8 Defendants-Appellees.
9 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
10 James A. Hall, District Judge
11 Daniel Gabino Martinez
12 Stephany Halene Martinez
13 Santa Fe, NM
14 Pro Se Appellants
15 Moses, Dunn, Farmer & Tuthill PC
16 Alicia L. Gutierrez
17 Albuquerque, NM
18 for Appellees
19 MEMORANDUM OPINION
20 CASTILLO, Judge.
21 Daniel Gabino Martinez and Stephany Halene Martinez (Plaintiffs) appeal from
22 the district court’s order granting the motion for summary judgment in favor of
1 Dordane Masseri (Nasseri) and Wells Fargo Bank, N.A. (Defendants) and denying the
2 parties’ motions to strike. [RP 231] On appeal, Plaintiffs contend that the district
3 court erred in granting Defendants’ motion for summary judgment and in denying
4 their motion to strike. The calendar notice proposed summary affirmance. [Ct. App.
5 File, CN1] Plaintiffs have filed a memorandum in opposition. [Ct. App. File, MIO]
6 Unpersuaded, we affirm.
7 DISCUSSION
8 Issues on Appeal: Plaintiffs contend that the district court erred in granting
9 Defendants’ motion for summary judgment for the following reasons: (1) the district
10 court applied the wrong standard of review because material issues of fact remain for
11 trial [DS 6-8]; (2) the district court failed to state the factual allegations relied upon
12 in granting summary judgment [DS 9-10]; (3) the district court erred in refusing to
13 grant Plaintiffs’ motion to strike on the basis that the “alleged judgment creditor has
14 no rights to execute and levy to enforce a foreign judgment absent registration and
15 domestication by a New Mexico district court” [DS 10]; (4) the district court erred in
16 not allowing Plaintiffs’ exhibits to be admitted since they establish that material issues
17 of fact remain, making summary judgment inappropriate [DS 10]; and (5) absent the
18 undomesticated foreign judgment against Plaintiffs, there is no evidence to warrant
19 summary judgment in favor of Defendants [DS 11]. We have considered Plaintiffs’
2
1 contentions in the docketing statement and the memorandum. For the reasons
2 discussed below, we affirm the district court’s order granting Defendants’ motion for
3 summary judgment and the order denying the motion strike.
4 1. The Correct Standard of Review (Issue 1). “An appeal from the grant of a
5 motion for summary judgment presents a question of law and is reviewed de novo.”
6 Montgomery v. Lomos Altos, Inc., 2007-NMSC-002, ¶ 16, 141 N.M. 21, 150 P.3d 971.
7 “Summary judgment is appropriate where there are no genuine issues of material fact
8 and the movant is entitled to judgment as a matter of law.” Id. “Where reasonable
9 minds will not differ as to an issue of material fact, the court may properly grant
10 summary judgment.” Id. As we discuss below, our review of the record indicates that
11 no material issues of fact remain requiring a trial and Defendants are entitled to
12 summary judgment as a matter of law. Therefore, we hold that the district court did
13 not apply the wrong standard of review in the order granting summary judgment to
14 Defendants.
15 2. No Material Factual Issues Remain and Defendants Are Entitled to
16 Summary Judgment as a Matter of Law (Issues 2, 4, 5). The motion for summary
17 judgment against Plaintiffs was granted based on the following undisputed facts: (1)
18 Plaintiffs opened jointly owned bank accounts at Defendant bank [RP 25, ¶¶ 3-6]; (2)
19 as of February 7, 2008, Plaintiffs’ bank accounts held $44,929.45 [RP 26, ¶ 11]; (3)
3
1 on February 7, 2008, Defendant bank was served with a writ of garnishment issued
2 by the United States District Court for the district of New Mexico against the property
3 of Plaintiff Daniel Gabino Martinez [RP 25, ¶ 7, Exhibit A, RP 33]; (4) Defendant
4 bank filed an answer to the writ informing the federal district court that it held the
5 funds in Plaintiffs’ bank accounts [RP 26, ¶ 12]; (5) Plaintiffs did not respond to the
6 writ of garnishment, object to it, or file a claim of exemption [RP 26, ¶ 13, Exhibit B,
7 RP 36]; (6) the order of garnishment was entered on March 6, 2008 [RP 27, ¶ 14,
8 Exhibit C, RP 43]; (7) the order of garnishment ordered Defendant bank to pay the
9 funds in Plaintiffs’ bank accounts to the United States [RP 44], and Defendant bank
10 did so [RP 27, ¶ 15]. Plaintiffs then filed their complaint for money due against
11 Defendants, asserting that they were wrongfully denied the funds in the bank accounts
12 [RP 27, ¶¶ 15-16].
13 Plaintiffs’ complaint, their response to the motion for summary judgment, and
14 their docketing statement contend that Defendants, the bank manager and the bank,
15 wrongfully refused them possession and enjoyment of the funds in their bank accounts
16 held at Defendant bank. [RP 1, RP 74, ¶ 4, DS] Although not denying the existence
17 or validity of the federal order of garnishment against Plaintiffs, Plaintiffs contend that
18 Defendants have failed to properly execute and levy to enforce the order of
19 garnishment, which was issued in federal district court and is therefore a foreign
4
1 judgment that is required to be domesticated in New Mexico district court in order to
2 be enforced or levied upon. [RP 76-78, ¶¶ 10-15] In addition, on appeal Plaintiffs
3 contend that the district court erred in failing to enumerate the facts relied upon in the
4 order granting summary judgment and erred in refusing to find that Plaintiffs’ exhibits
5 create material issues of fact.
6 First, the district court did not err in failing to enumerate the facts relied upon
7 in granting the motion for summary judgment. As we discussed in the calendar
8 notice, the facts relied upon consist of the undisputed facts enumerated in Defendants’
9 motion for summary judgment as entitling Defendants to summary judgment, with
10 which the district court agreed in granting the motion. Second, Plaintiffs’ exhibits,
11 consisting of Plaintiffs’ requests for lists of foreign judgments against them and the
12 State district court clerks’ negative responses thereto do not create a material issue of
13 fact with regard to the undisputed existence of an order of garnishment issued by the
14 United States District Court for the District of New Mexico based on a judgment in
15 favor of the United States against Plaintiffs in United States v. Martinez, Case No.
16 6:06-cv-01146-PJK-LFG, served upon Defendant bank and Defendant branch
17 manager, and requiring Defendant bank to comply therewith by turning over
18 Plaintiffs’ funds to the United States.
19 Third, while Plaintiffs rely on Defendants’ alleged failure to comply with the
5
1 domestication of foreign judgments statute, citing NMSA 1978, Section 39-4A-3
2 (1994), they ignore New Mexico’s law requiring New Mexico’s courts to take judicial
3 notice of the judicial proceedings of the United States and New Mexico’s garnishment
4 statutes. Rule 1-044(A)(3) NMRA requires the courts of New Mexico to take judicial
5 notice of the public and private official acts of the judicial departments of the United
6 States. In this case, the judgment against Plaintiff in Martinez, the writ of
7 garnishment, and the order of garnishment relating thereto, which are attached to
8 Defendants’ motion for summary judgment as Exhibits A and C [RP 33, 43], are
9 official acts of the judicial departments of the United States, of which the first judicial
10 district court of New Mexico is required to take judicial notice. As such,
11 domestication of the federal judgment against Plaintiffs in Martinez is unnecessary as
12 a matter of law. To the extent that in the memorandum Plaintiffs continue to raise the
13 same arguments to dispute that this legal analysis is correct, we are not persuaded.
14 See, e.g., Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 68315 (“Our courts have repeatedly held that, in summary calendar cases, the burden is on
16 the party opposing the proposed disposition to clearly point out errors in fact or law.”).
17 Moreover, as Defendants point out, in focusing on Defendants’ alleged failure
18 to domesticate the federal judgment, Plaintiffs fail to recognize that New Mexico
19 garnishment law provides the method for collecting on federal judgments and makes
6
1 it unlawful for the garnishee, in this case Defendants, not to comply with the order of
2 garnishment. See NMSA 1978, § 35-12-3 (1969). Pursuant to New Mexico
3 garnishment law, in holding assets belonging to a judgment debtor, in this case
4 Plaintiffs, Defendants were required to comply with the order of garnishment and pay
5 the Plaintiffs’ funds in the bank accounts to the United States. As a matter of law,
6 Defendants are not liable to Plaintiffs for doing so in accordance with the law. To the
7 extent that Plaintiffs continue to deny the validity of these legal principles in the
8 memorandum, we are not persuaded.
9 Finally, while Plaintiffs continue, incorrectly, to contend that the judgment in
10 Martinez was required to be domesticated to be enforced, as Defendants point out,
11 Plaintiffs do not otherwise contest the existence or validity of the federal judgment,
12 writ, and order of garnishment. [RP 59] Exhibit B of the motion for summary
13 judgment, which is the docket sheet for Martinez, indicates that Plaintiffs did not
14 object to the writ of garnishment or claim any exemption to it and that the order of
15 garnishment was entered upon the writ. [RP 59, Exhibit B, RP 36]
16 As such, we remain persuaded that there are no issues of material fact requiring
17 a trial and that Defendants are entitled to judgment as a matter of law. We therefore
18 affirm the district court’s order granting summary judgment to Defendants.
19 3. The District Court Did Not Err in Denying Plaintiffs’ Motion to Strike
7
1 (Issue 3). Plaintiffs also contend that the district court erred in denying their motion
2 to strike. [RP 164-71] Plaintiffs moved to strike Defendants’ affirmative defense to
3 the complaint, which states that Plaintiffs’ funds in the bank accounts were lawfully
4 transferred to the United States pursuant to the writ and order of garnishment entered
5 upon the federal judgment in Martinez. [RP 10, ¶ 14] In their motion to strike,
6 Plaintiffs argued that Defendants failed to properly enforce a foreign judgment by
7 domesticating it and, therefore, Defendants had no right to levy upon the order of
8 garnishment. [RP 164-71] These are the same arguments that Plaintiffs raise in the
9 response to the motion for summary judgment. [RP 73-79] Defendants’ response to
10 the motion to strike makes the same points that Defendants make in their motion for
11 summary judgment and their reply to Plaintiffs’ response to the motion for summary
12 judgment. [RP 172-75] We have already discussed why Plaintiffs’ contentions do not
13 entitle Plaintiffs to relief as a matter of law.
14 Accordingly, we affirm the district court’s decision to deny Plaintiffs’ motion
15 to strike.
16 CONCLUSION
17 We affirm the district court’s order granting Defendants’ motion for summary
18 judgment and denying Plaintiffs’ motion to strike. [RP 231]
19 IT IS SO ORDERED.
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1 ________________________________
2 CELIA FOY CASTILLO, Judge
3 WE CONCUR:
4 ________________________________
5 JAMES J. WECHSLER, Judge
6 ________________________________
7 JONATHAN B. SUTIN, Judge
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