February 19, 2019- Deutsche Bank v. Barbara J. Pino, No. A-1-CA-37056

OCR transcription for search; preserved printed pages are authoritative

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

DEUTSCHE BANK NATIONAL TRUST Court of Appeals of New Mexico
COMPANY AS TRUSTEE OF Filed 2/19/2019 8:23 AM
MASTR 2007-01, AL ™
Plaintiff/Counterdefendant-Appellee, Mark Reynolds
Vv. NO. A-1-CA-37056
BARBARA J. PINO,
Defendant/Counterclaimant-Appellant,
and

UNITED STATES OF AMERICA by and
through THE INTERNAL REVENUE
SERVICE; THE STATE OF NEW
MEXICO DEPARTMENT OF TAXATION
& REVENUE; and THE UNKNOWN
SPOUSE OF BARBARA J. PINO, if any,

Defendants.

APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
James Lawrence Sanchez, District Judge

Houser & Allison, APC
Lindsay K. Griffel
Albuquerque, NM

for Appellee

Martin E. Threet and Associates
Joseph L. Romero
Albuquerque, NM

for Appellant

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MEMORANDUM OPINION

VANZI, Judge.

{1}. Defendant Barbara J. Pino (Defendant) appeals from the district court’s order
granting Plaintiffs motion for sanctions, decree of foreclosure, order of sale,
appointment of special master, and the order denying her motion to reconsider. [2 RP
263, 304; DS 2-3] In this Court’s notice of proposed disposition, we proposed to
summarily affirm. Defendant filed a memorandum in opposition, which we have duly
considered. Remaining unpersuaded, we affirm. We note that Defendant also filed a
motion to supplement the record, seeking to file with this Court a CD of the August
24, 2016 district court hearing. For the reasons discussed below, we deny the motion.
23 Defendant continues to argue that the district court erred in imposing sanctions
by way of the judgment against her. [MIO PDF 1-6] Quoting from portions of the
August 24, 2016 hearing, Defendant contends that, when it was ordering discovery
sanctions, the district court referred to her prior counsel’s acts and
omissions—despite the court’s knowledge of her prior counsel’s inactive status—and
did not specifically impose sanctions based on anything her replacement counsel did
or did not do. [MIO PDF 2-4] According to the transcription of the CD provided in
Defendant’s memorandum in opposition, the district court asked replacement counsel

whether he had filed a response to the motion for sanctions or order compelling

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discovery. Replacement counsel responded that he did not file a written response, that
he “got into this case sometime early July,” that prior counsel went inactive mid-June,
and that discovery was complete and would be delivered that day. [Id.] The district
court’s subsequent question regarding whether the responses were due in May was
met with replacement counsel’s response that he was not on the case in May and did
not know. [MIO PDF 3] After this exchange, the district court instructed Appellee’s
counsel to prepare an order for in rem judgment based on Defendant’s failure to
comply with discovery, and reserved ruling on in personam judgment pending
Defendant’s further compliance with discovery, allowing replacement counsel an
opportunity to “jump in the case and see .. . whether there are defenses” against a
personal judgment. [MIO PDF 3-4]

{3} Far from indicating to this Court that replacement counsel’s actions were in no
way related to the district court’s concerns regarding Defendant’s failure to address
the discovery issues, we are instead persuaded that the opposite is true: the district
court imposed the sanction of in rem judgment for Defendant’s discovery violations,
including her replacement counsel’s failure to act on the motion for sanctions, order
compelling discovery, and other apparent failures apparent in the record when he took

over for prior counsel in early July, which inaction continued through the hearing in

late August. [See MIO PDF 2-4; see also DS 2, | RP 248-255 (setting forth that

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replacement counsel entered his appearance on July 8, the district court set a hearing
on the motion for sanctions on August 8, and the hearing commenced on August 24,
with no responsive motion filed by replacement counsel on the motion for sanctions)]
The district court also specifically noted that it was reserving its decision on whether
personal judgment against Defendant would be entered, based on replacement
counsel’s actions with regard to discovery going forward. [MIO PDF 3-4] When the
district court entered its order granting sanctions against Defendant the following
month, it indeed ordered in rem judgment against Defendant and expressly reserved
ruling on whether a judgment for any deficiency in the proceeds—i.e., the personal
judgment—would be awarded against Defendant until further hearing after the
foreclosure sale. [2 RP 263-64, 266]

{4 As we review the district court’s discovery orders and sanctions imposed for
discovery violations for an abuse of discretion, Villalobos v. Bd. of Cty. Comm’rs,
2014-NMCA-044, 14, 322 P.3d 439; Sanchez v. Borrego, 2004-NMCA-033, { 10,
135 N.M. 192, 86 P.3d 617, and as the district court’s in-rem judgment as a sanction
for Defendant’s discovery violations is not “clearly contrary to the logical
conclusions demanded by the facts and circumstances of the case[,]” Benz v. Town
Ctr. Land, LLC, 2013-NMCA-111, 9 11,314 P.3d 688 (internal quotation marks and

citation omitted), we conclude that the district court did not err. See Rule 1-037(B)

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NMRA (permitting judgment against a party who fails to comply with a discovery
order compelling responses); Rio Grande Gas Co. v. Gilbert, 1971-NMSC-113,
q{] 20-21, 23, 83 N.M. 274, 491 P.2d 162 (concluding that the appellant’s failure to
timely produce documents as ordered by the district court constituted willful failure
to comply with the order and, as such, judgment against the appellant was not an
abuse of discretion); cf Lewis v. Samson, 2001-NMSC-035, Jf 23-24, 131 N.M. 317,
35 P.3d 972 (concluding that the district court did not abuse its discretion in imposing
more severe sanctions when the party had repeatedly breached her duties under the
discovery rules); Pizza Hut of Santa Fe, Inc. v. Branch, 1976-NMCA-051, {§ 27-30,
89 N.M. 325, 552 P.2d 227 (determining that the sanction of dismissing a party’s
actions for that party’s failure to comply with discovery requests was proper).

{5} With regard to Defendant’s motion to supplement the record, we note that
Defendant transcribed the relevant portions of the CD in her memorandum in
opposition, and we have accepted and relied on such transcription as a true reiteration
of the conversation between the district court and Defendant’s replacement counsel
for the purposes of her argument. As such, we do not see the need to grant the motion
and deny it as moot.

«6 | Accordingly, as Defendant has failed to persuade us that our proposed

disposition was incorrect, see Hennessy v. Duryea, 1998-NMCA-036, J 24, 124.N.M.

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754, 955 P.2d 683 (“Our courts have repeatedly held that, in summary calendar cases,
the burden is on the party opposing the proposed disposition to clearly point out
errors in fact or law.”), and for the reasons stated in our notice of proposed
disposition and herein, we affirm.

1; ITISSO ORDERED.

igo st! ANZI, Judge |

WE CONCUR:

dee

M. MONICA ZAMORA) Chief Judge

Ls pro Gores tad

KRISTINA BOGARDUS, Judge