June 25, 2019- George Mendoza v. Lucinda Huber (Deceased), No. A-1-CA-36180

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Court of Appeals of New Mexico
Filed 6/25/2019 11:03 AM

| | Mn,
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO Mark Reynolds

GEORGE MENDOZA,
Plaintiff-Appellant,
v. No. A-1-CA-36180

LUCINDA HUBER (DECEASED),
and RANDY AND CINDY FARMER,
LLC, as Successors in Interest,

Defendants-Appellees.

APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY
Manuel I. Arrieta, District Judge

George Mendoza
Las Cruces, NM

Pro Se Appellant
The Pickett Law Firm, LLC
Mark L. Pickett
Las Cruces, NM
for Appellees
MEMORANDUM OPINION
BOGARDUS, Judge.

{13 | George Mendoza appeals the district court order recognizing Lucinda Huber!

as the recorded title holder of real property over which the parties disputed

Lucinda Huber died during the pendency of this action and Randy and Cindy
Farmer, LLC, Ms. Huber’s successors in interest, are substituted as Appellees in this
appeal. We refer to Plaintiff as “Mr. Mendoza” and Defendant as “Ms. Huber”

1 ownership. Mr. Mendoza challenges the factual conclusions underlying the order.
2 Having determined that those conclusions are supported by sufficient evidence, we
3 affirm.
4 	BACKGROUND
5 	{2} 	The property that is the subject of this dispute is a house purchased by Ms.
6 Huber in 1974. Ms. Huber's son, Mr. Mendoza, lived in the house with Ms. Huber
7 until she moved out in 1980. Except for a two-month period in 1982, Mr. Mendoza
8 lived in the house continuously after that. Mr. Mendoza claims that he paid the
9 mortgage and property taxes on the house by turning over his social security checks
10 to Ms. Huber every month. Ms. Huber disputes that claim and maintains that she
11 	paid the mortgage, taxes, and insurance premiums on the house. From 1991 through
12 2003, 	the 	parties 	executed 	several 	quitclaim 	deeds 	to 	the 	house 	transferring
13 	ownership between them. The last such deed on record, dated October 10, 2003,
14 transferred the house from Mr. Mendoza to Ms. Huber. Mr. Mendoza filed a quiet-
15 	title action in 2008 against Ms. Huber; 	it was dismissed in 2010 for lack of
16 prosecution. Mr. Mendoza later filed the complaint to quiet title that is the subject
17 	of this appeal.
18 	{3} 	Following a bench trial, 	the 	district court entered findings 	of fact 	and
19 conclusions of law and concluded that Ms. Huber is "the rightful title owner" of the
throughout the opinion for clarity.
2

1 house. Because the 2003 deed transferring title to Ms. Huber was the last deed on
2 record, the district court determined that there was no title to quiet as to the subject
3 property and dismissed Mr. Mendoza's quiet title action. This appeal followed.
'
4 DISCUSSION
5 	{4} 	Mr. Mendoza raises four issues on appeal. He contends that the district court
6 erred in (1) failing to find that Ms. Huber gave Mr. Mendoza the house in 1980 by
7 way of an oral, inter vivos gift; (2) finding that the first quitclaim deed, from 1991,
8 did not transfer final ownership of the house from Ms. Huber to Mr. Mendoza; (3)
9 declining to find that Mr. Mendoza's signature on the October 2003 quitclaim deed
10 was forged and the deed obtained by fraud; and (4) failing to award the house to Mr.
11 	Mendoza on the basis of promissory estoppel.
12 {5} 	We review the district court's resolution of this matter to "ensure that the
13 	findings, when viewed in the light most favorable to support the [district] court's
14 findings, are supported by substantial evidence." Blea v. Fields, 2005-NMSC-029,
15 ,r 18, 138 N.M. 348, 120 P.3d 430. "Substantial evidence is such relevant evidence
16 that a reasonable mind would find adequate to support a conclusion." Landavazo v.
17 Sanchez, 1990-NMSC-114, ,r 7, 111 N.M. 137, 802 P.2d 1283. We "will not disturb
18 	findings, weigh evidence, resolve conflicts or substitute its judgment as to the
19 credibility of witnesses where evidence substantially supports findings of fact and
20 conclusions of law of the [district] court." Stern/off v. Hughes, 1978-NMSC-032,
21 if 23, 91 N.M. 604, 577 P.2d 1250.
3

1 {6} 	In applying this standard of review to the case before us, we are confronted
2 with a procedural issue that must be resolved, namely, how to determine what
3 evidence was presented below. Mr. Mendoza's brief in chief cites to pages from a
4 transcript, purportedly of the trial proceedings. In response, Ms. Huber maintains
5 that she is unaware of the existence of such a transcript and contends that Mr.
6 Mendoza failed to designate portions of the proceedings that should be submitted to
7 this Court for our consideration on appeal. Indeed, no such transcript has been
8 provided to this Court. We note the possibility that the trial was audio-recorded;
9 however, only one CD has been submitted to this Court, and that CD contains a
10 recording only of a short pretrial hearing during which the then-upcoming trial was
11 	continued. Thus, no audio recording of the trial has been submitted to this Court.
12 Mr. Mendoza did not file a reply brief and so did not address the transcript-issue
13 	raised in Ms. Huber's answer brief. In sum, Mr. Mendoza has failed to provide this
14 Court with any written or audio record of the testimony, argument, and rulings from
15 	the trial on this matter.
16 {7} 	It is an appellant's burden to submit a record sufficient for us to review the
17 issues raised by the appellant. See Sandoval v. Baker Hughes Oilfield Operations,
18 Inc., 2009-NMCA-095, 1 65, 146 N.M. 853, 215 P.3d 791 ("It is the duty of the
19 appellant to provide a record adequate to review the issues on appeal."). When an
20 appellant fails to do this, we may decline to consider the appellant's issues and, in
21 	particular, we will decide factual issues on the basis of the findings of fact entered
4

1 by the district court. See Ross v. City of Las Cruces, 2010-NMCA-015,, 18, 148
2 N.M. 81,229 P.3d 1253 (noting that where the appellant fails to cite to any portion
3 	of the record to support its factual allegations, the Court need not consider its
4 argument); see also Flower v. Willey, 1981-NMSC-024,, 7, 95 N.M. 476,623 P.2d
5 990 (stating that where no transcript is provided to the appellate court, the district
6 	court's findings of fact are binding on appeal). Furthermore, upon a doubtful or
7 deficient record, this Court will presume the district court's decision is correct and
8 regular. 	Sandoval, 	2009-NMCA-095, 	, 	65. 	Lastly, 	Ms. 	Huber's 	answer 	brief
9 	discussed the failure to provide relevant portions of the district court proceedings for
10 our review on appeal, thus, Mr. Mendoza's failure to address the issue in his reply
11 	constitutes a concession in this matter. See Delta Automatic Sys., Inc. v. Bingham,
12 	1999-NMCA-029, , 31, 126 N .M. 717, 974 P .2d 1174 (explaining that the plaintiffs'
13 	failure to respond in their reply brief to an argument raised in the defendant's answer
14 brief constituted a concession).
15 	{8} 	We recognize that Mr. Mendoza is representing himself on appeal. However,
16 while the filings of a pro se appellant are viewed with some tolerance, the self-
17 represented litigant must still comply with our appellate rules and will be given no
18 greater rights than a party who is represented by counsel. Newsome v. Farer, 1985-
19 NMSC-096,, 18, 103 N.M. 415, 708 P.2d 327. Given the foregoing, in deciding this
20 appeal we will presume the district court's findings of fact were based on evidence
21 	presented to that court, and we will disregard Mr. Mendoza's one-sided statement of
5

1 the 	evidence 	set out in his brief in chief. 	We will 	limit 	our- review to the
2 determination of whether the district court's decision is adequately supported by its
3 findings of fact.
4 {9} 	As noted above, Mr. Mendoza's first issue is a claim that Ms. Huber made a
5 binding oral gift of the house to Mr. Mendoza in 1980. With respect to that issue,
6 the district court made the following findings of fact and conclusions of law: (1) Ms.
7 Huber testified that she had no intention to give the house to Mr. Mendoza; (2) the
8 parties' actions subsequent to 1980, including the back-and-forth exchanges of
9 quitclaim deeds beginning in 1991, repudiate the claim that a gift occurred in 1980;
10 (3) any improvements made to the house by Mr. Mendoza can be considered to be
11 	efforts to accommodate his own living standards or to have been performed in lieu
12 	of rent, rather than in reliance on a purported gift of the house to Mr. Mendoza; and
13 	(4) since October 10, 2003, Ms. Huber has held the property in her name without
14 any further exchanges of quitclaim deeds. These findings are sufficient to support
15 	the court's determination that no gift of the house occurred in 1980, as they
16 contradict the existence of more than one of the required aspects of an enforceable
17 oral gift of real property. See Montoya v. N.M Human Servs. Dep't, 1989-NMCA-
18 	017,, 21, 108 N.M. 263, 771 P.2d 196 (noting that parol gifts of property may be
19 enforceable if "there is conclusive proof of words showing that the donor intended
20 to make a gift, that possession was taken in reliance on the gift, and that the donee
21 	made permanent and valuable improvements" in reliance on the alleged gift).
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1 {to} 	Mr. Mendoza next argues that the 1991 quitclaim deed from Ms. Huber to
2 him, the first in the succession of such transfers back and forth, 	irrevocably
3 transferred ownership of the house to Mr. Mendoza. According to Mr. Mendoza, he
4 never intended to transfer ownership back to Ms. Huber, leaving the 1991 quitclaim
5 deed as the only enforceable transfer of such ownership. However, the existence of
6 subsequent quitclaim deeds between the parties, standing alone, provides conflicting
7 evidence regarding the intent behind ea~h such deed. Furthermore, the district court
8 found there was evidence that Ms. Huber paid all of the property taxes and insurance
9 for the house throughout the years, which indicates that the parties considered her to
10 be the "real" owner of the house. The district court resolved the conflicting evidence
11 	regarding the parties' intentions behind each successive deed against Mr. Mendoza.
12 We will not disturb that resolution of conflicting evidence on appeal. See Summers
13 	v. N.M Water Quality Control Comm 'n, 2011-NMCA-097, ,-r 12, 150 N.M. 694,265
14 P.3d 745 (stating that issues involving intent or knowledge are generally questions
15 	of fact to be resolved by the trial court); see also Skeen v. Boyles, 2009-NMCA-080,
16 ,-r 37, 146 N.M. 627, 213 P.3d 531 	(noting that on appeal we will not disturb
17 credibility determinations made by the trial court).
18 	{11} 	Mr. Mendoza also maintains that the last in the series of deeds, the October
19 	10, 2003 quitclaim deed that transferred ownership of the house from Mr. Mendoza
20 to Ms. Huber, was forged. He points out that he presented expert testimony to that
21 	effect, and argues that the district court was bound by that expert testimony because
7

1 Ms. Huber did not present an expert in opposition. Mr. Mendoza's argument
2 misstates the law. Experts' opinions, even if uncontradicted, are not conclusive on
3 the facts in issue, and the district court may reject an expert's opinion as it chooses.
4 State ex rel. Martinez v. Lewis, 1993-NMCA-063, ,-r 57, 116 N.M. 194, 861 P.2d
5 235. 	Moreover, 	Mr. 	Mendoza's 	prior 	sworn 	statement, 	made 	in 	his 	verified
6 complaint, impeached his claim of forgery because he swore that while he had signed
7 the quitclaim deed, he did not know the contents of the document he was signing.
8 See Rekart v. Safeway Stores, Inc., 1970-NMCA-020, ,-r 18, 81 N.M. 491,468 P.2d
9 892 (stating that a verified complaint is equivalent to a sworn affidavit). Given the
10 circumstances of this case, including the parties' established practice of exchanging
11 	quitclaim 	deeds, 	the 	district 	court 	could 	properly reject 	the 	opinion 	of Mr.
12 Mendoza's expert.
13 	{12} 	Mr. Mendoza's final argument is a claim that the district court should have
14 awarded ownership of the house to him on the basis of promissory estoppel. Ms.
15 	Huber contends that this argument was not preserved below because Mr. Mendoza
16 failed to request findings of fact and conclusions of law concerning promissory
17 estoppel. We agree that Mr. Mendoza's requested findings and conclusions do not
18 mention the promissory-estoppel theory and that they fail to address at least some of
19 the elements of such a claim. See Khalsa v. Levinson, 2003-NMCA-018, ,-r 24, 133
20 N.M. 206, 62 P.3d 297 (listing as elements of promissory estoppel (1) "a promise
21 	which induced the promisee's action or forbearance"; 	(2) that the promisee's
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1 reliance was reasonable; (3) that "the promisee's action or forbearance amounted to
2 a substantial change in position"; (4) that the promisee's action or forbearance was
3 actually foreseen by the promisor when making the promise; and (5) that "the
4 enforcement of the promise is required to prevent injustice"). It appears that the onlr
5 element discussed in the requested findings is reliance; Mr. Mendoza did request
6 findings to the effect that he made valuable improvements to the house in reliance
7 on the "oral vivos (sic) gift of real property[.]" The district court rejected this
8 contention, finding that the claimed improvements can be explained as having been
9 made in lieu of rent, or as efforts to accommodate Mr. Mendoza's own needs and
10 living standards. Absent a record of the trial,. we have no way of determining whether
11 	the court's determination was not factually supported, and as discussed above, we
12 must therefore accept it. Accordingly, we reject Mr. Mendoza's promissory-estoppel
13 	argument, to the extent it may have been preserved below.
14 	CONCLUSION
15 	{13} 	Based on the foregoing, we affirm the district court's order.
16 	{14} 	IT IS SO ORDERED.
17 	~I--~18 	KRITINABOGlJS,Judge
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—

WE CONCUR:

Whe

M. MONICA ZAMORA, Chief Judge

MEGAN P. ne oe

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