A-1-CA-37117 | Omnilex

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2| RABO AGRIFINANCE, LLC Court of Appeals of New Mexico
7 ee Filed 3/2/2020 11:05 AM
3] Successor in Interest to Farm A

A| Credit Bank of Texas,

5 Plaintiff-Appellee, Mark Reynoits
6] v. No. A-1-CA-37117
7-TERRA XXI, LTD, a-Texas limited

8] partnership, composed of VEIGEL

CATTLE CO., as General Partner;

ROBERT WAYNE VEIGEL a/k/a
BOB W. VEIGEL; ELLA MARIE
WILLIAMS VEIGEL; VEIGEL

CATTLE CO., a Texas corporation;
VEIGEL FARM PARTNERS, a Texas

PARTNERS, BOB VEIGEL, INC., a
Texas corporation; STEVE VEIGEL,

INC., a Texas corporation; VEIGEL
KIRK, INC., a Texas corporation;
VICKI VEIGEL, INC., a Texas

corporation; VEIGEL FARMS, INC.,
a Texas corporation; TERRA PARTNERS,

a Teyac general nartnerchin: BURNETT S& &r

a EA AGQDY o'er ai poet UEEVE SIPs PUACE OVERS Ve SG

VEIGEL, INC., a Texas corporation as
General Partner of TERRA PARTNERSHIP,

and ALL UNKNOWN CLAIMANTS
OF INTEREST IN THE PREMISES
ADVERSE TO THE PLAINTIFF,

Defendants-A ppellants.

| general partnership, d/b/a VEIGEL eee

On B&B WwW

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APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY
Drew D. Tatum, District Judge

Rowley Law Firm, L.L.C.
Richard F. Rowley, II
Clovis, NM
for Appellee
William F. Davis & Associates, P.C.
William F. Davis
Nephi D. Hardman
Albuquerque, NM
for Appellants
MEMORANDUM OPINION
HANISEE, Chief Judge.
{1} The opinion filed January 9, 2020, is hereby withdrawn, this opinion is
substituted in its place. In this mortgage foreclosure dispute, Robert Wayne Veigel
and Terra XXI, Ltd., et al.' (members of the Veigel family or entities run by
members of the Veigel family) (collectively, Defendants) appeal from the district

court’s order entered on January 8, 2018 (January 2018 Order) in favor of Rabo

Agrifinance, LLC (Plaintiff). We affirm.

'Steve Veigel, a non-party whose motion to intervene was denied, claims to
bring this appeal as a “proposed intervener and substituted party in his individual
capacity as the assignee of all of the other originally named Defendants” except
Robert Veigel. The district court questioned the validity of these assignments.

BACKGROUND

23 This is the

dispute. See Rabo Agrifinance, Inc. v. Terra XX1, Ltd., No. 34,757, mem. op. § 1, 2

(N.M. Ct. App. Nov. 18, 2015) (non-precedential); Rabo Agrifinance, Inc. v. Terra

XXI, Ltd., 2014-NMCA-106, § 2, 336 P.3d 972; Rabo Agrifinance, Inc. v. Terra XX],

Ltd., 2012-NMCA-038, 4 2, 274 P.3d 127. Our factual overview in_ this

memorandum opinion is drawn from three prior opinions and the current record

proper.

{33 In prior appeals, we affirmed the district court’s grant of summary judgment

in favor of Plaintiff. We held that Plaintiff had a 100% lien interest in the subject

property, dismissed Defendants’ counterclaims, denied relief from judgment under

Rule 1-060(B) NMRA, and noted disapproval of Defendants’ multiple Rule 1-

060(B) motions. See Rabo Agrifinance, Inc., No. 34,757, mem. op. {| 1, 2; Rabo

Agrifinance, Inc., 2014-NMCA-106, J 2, 8; Rabo Agrifinance, Inc., 2012-NMCA-

038, 4§ 2, 21. Following Defendants’ most recent unsuccessful appeal, in which we

denied Defendants’ second Rule 1-060(B) motion pursuant to the primary fund

doctrine, Plaintiff moved for the release of a $150,000 supersedeas bond previously

granted to stay the confirmation of the foreclosure sale during the appeal, for

confirmation of the foreclosure sale itself, entry of deficiency judgment in the

amount of $1,478,034.37, and entry of an order declaring the special warranty deeds

(the May 2015 Deeds)}—conveyed to Steve Veigel and recorded on the same day as

the May 19, 2015

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34,757, mem. op. FF 1, 2. Less than a month later, on May 4, 2016, the district court

issued an order confirming the foreclosure sale and providing a one-month right of

redemption

44 On May 31, 2016, the same day as the hearing on Plaintiff's motion to resolve

remaining issues, Steve Veigel filed a notice of the filing of assignments, assigning

rights to any and all causes of actions from all Defendants except Robert Veigel to

Steve Veigel. At the hearing, the district court orally granted Plaintiff's motion, and

issued an order to that effect on June 29, 2016 (June 2016 Order), awarding Plaintiff

the $150,000 supersedeas bond, granting the deficiency judgment in the amount of

$1,478,034.37, and declaring the May 2015 Deeds null and void. Before entry of the

June 2016 Order, Steve Veigel, who is not a party to the action, and Defendant

Robert Veigel, filed a pro se motion to reconsider, reopen, and vacate all orders and

judgments for Plaintiff, raising previously adjudicated arguments regarding the

extinguishment of Plaintiffs liens in the bankruptcy discharge. Twelve days after

the entry of the June 2016 Order, Steve Veigel, again joined by Defendant Robert

Veigel, filed a pro se supplemental motion to reconsider, reopen, and vacate all

orders and judgments for Plaintiff.

3} OnJuly 19, 2016, Plaintiff moved for a writ of assistance to effect entry of the

pproximately one year later

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on August 25, 2017, the district court issued a disposition order for lack of

prosecution. One month later, Defendants filed a motion for reinstatement. The

district court heard_arguments_on the motion and ultimately entered _an_order_on

January 8, 2018 (January 2018 Order), denying Defendants’ motion for

reinstatement, motion to reconsider, reopen and vacate all orders and judgments for

Plaintiff, and supplemental motion to reconsider, reopen, and vacate all orders and

judgments for Plaintiff. Defendants appeal.

DISCUSSION

{6} Defendants argue the denial of the motion for reinstatement was improper

because the district court erred by (1) dismissing the case for lack of prosecution;

(2) refusing to reinstate the case for good cause; (3) applying res judicata to the Texas

judgments; (4) acting without jurisdiction during pending appeals as well as in

contravention of the bankruptcy court’s discharge; (5) confirming Plaintiffs status

as a judgment creditor in violation of federal borrowers’ rights; (6) refusing to

reverse the nullification of the two deeds allegedly conveyed to Steve Veigel on May

19, 2015 (the May 2015 Deeds); and (7) refusing to reverse the award of supersedeas

bonds to Plaintiff.

{Based on our review of the record, we note that three of Defendants’

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rights, and extinguishment of liens in Chapter 11 bankruptcy discharge—should

have been raised or were raised and addressed in their earlier appeals, and now

Defendants are bound by the law of the case.* See Rabo Agrifinance, Inc., No

34,757, mem. op. § 4 (holding that Defendants should have raised primary fund

argument in first Rule 1-060(B) motion); Rabo Agrifinance, Inc., 2014-NMCA-106,

*We have reviewed the bankruptcy plan itself, the district court’s findings of
fact in granting summary judgment to Plaintiff, as well as our opinion in the first
appeal. Rabo_Agrifinance, Inc.,-2012-NMCA-038, 9419-21. These_collectively

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reveal that Defendants’ “lien extinguishment” argument has been resolved because
First Ag Credit (FAC), Plaintiff's predecessor-in-interest, was provided for in the
plan. Further, our opinion in the first appeal noted there are no genuine issues of

material fact here and dismissed Defendants’ counterclaims based on the same lien
extinguishment argument. Rabo Agrifinance, Inc., 2012-NMCA-038, §§ 4, 19-21.
We also observe that multiple court orders across jurisdictions have similarly

rejected Defendants’ lien extinguishment argument based upon provision for
Plaintiff's predecessor-in-interest in the bankruptcy plan. As the United States Court

of Appeals for the Fifth Circuit elaborated, “[iJt is clear from the plan that the
obligations under the [s]enior [n]otes were preserved. . . After the bankruptcy, in
2004, [FAC] assigned to [Plaintiff] its interest in the notes, which plainly included
[FAC]’s rights under the bankruptcy plan. Rabo Agrifinance Inc. v. Terra XXI Ltd.,

257 F. App’x 732, 733 (5th Cir. 2007). We agree. The Fifth Circuit went so far as to
sanction Steve Veigel for this frivolous argument by requiring his filings to be vetted
by the district court “to determine whether the issues contained in the filing have

been previously decided.” Terra Partners v. Rabo Agrifinance, Inc., 504 F. App’x
288, 291 (Sth Cir. 2012) (per curiam). Again, Defendants opt to employ scant
judicial resources to litigate previously failed arguments and obfuscate these same

contentions with inaccurate, vague, and incomplete representations of the facts and
law underpinning this case. We reject Defendants’ contentions in this regard once
again, and any assertion based thereon that this court lacks jurisdiction in any

respect.

44 2. 8, 17 (affirming summary judgment in favor of Plaintiff that Plaintiff holds a

Rabo_Agrifinance, Inc., 2012-NMCA-

038, 79 4, 19-21 (affirming the summary judgment in favor of Plaintiff including the

dismissal of Defendants’ counterclaims as barred by res judicata and collateral

estoppel). “We have long held that a decision by an appeals court on an issue of law

made in one stage of a lawsuit becomes binding on subsequent trial courts as well as

subsequent appeals courts during the course of that litigation.” State ex rel. King v.

UU Bar Ranch Ltd. P’’ship, 2009-NMSC-010, § 21, 145 N.M. 769, 205 P.3d 816. “It

has also been said that the rule applies not only to questions specifically decided [or

raised], but also to those necessarily involved . . . [and] those questions which could

have been... raised.” Farmers’ State Bank of Texhoma, Okla. vy. Clayton Nat’l Bank,

1925-NMSC-026, ¥ 20, 31 N.M. 344, 245 P. 543 (citation omitted); see also Trujillo

v. City of Albuquerque, 1998-NMSC-031, 4 40, 125 N.M. 721, 965 P.2d 305 (“Law-

of-the-case doctrine is a matter of precedent and policy; it is a determination that, in

the interests of the parties and judicial economy, once a particular issue in a case is

settled it should remain settled.” (internal quotation marks and citation omitted)).

While we will not apply the law-of-the-case doctrine to uphold a clearly erroneous

decision, it is within our discretion to apply the law of the case where the previous

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decisions were not clearly erroneous, as here. 7rujillo, 1998-NMSC-031, ¥ 41;

Farmers’ State Bank of Texhoma, 1925-NMSC-026, ¥ 24. Accordingly, we decline

to address arguments Defendants raised or could have raised in prior appeals and

limit_our review to Defendants remaining contentions

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I. The District Court’s Resolution of the Pending Motions Was Proper

83 Defendants contend that the district court erred in dismissing the case for lack

of prosecution before the applicable time had expired and by denying reinstatement

for good cause. Because we conclude that the underlying motions were improper,

we cannot agree with Defendants’ contentions that the denial of reinstatement was

in error.

(93 As a preliminary matter, we address whether Defendants’ motions were

properly before the district court. The district court’s January 2018 Order states,

“Steve Veigel is not a party in the case and had no standing to file motions in this

matter, especially as a pro se litigant on behalf of corporations and other legal

entities.” We agree. It is axiomatic that a non-attorney, non-party cannot file pro se

motions on behalf of parties to an action. See Martinez v. Roscoe, 2001-NMCA-083,

45, 131 N.M. 137, 33 P.3d 887 (holding that LLCs, corporations, partnerships, and

other artificial legal entities must appear in court through a licensed attorney).

Moreover, there having been no properly filed motion by Steve Veigel, it was

improper for Robert Veigel to join Steve Veigel’s motions. Notably, Defendants cite

no authority for the proposition that Robert Veigel’s joining of the improper motions

thereby renders the motion proper, given that Defendants were fully aware that Steve

Veigel had previously been denied intervention in 2013. See In re Adoption of Doe,

1984-NMSC-024, 4.2, 100 N.M. 764, 676 P.2d 1329 (“We have_lon

NAVAS >

present an issue on appeal for review, an appellant must submit argument and

authority as required by rule. We assume where arguments in briefs are unsupported

by cited authority, counsel after diligent search, was unable to find any supporting

authority. We therefore will not do this research for counsel. Issues raised in

appellate briefs which are unsupported by cited authority will not be reviewed by us

on appeal.” (emphasis and citations omitted)). Therefore, we need not reach the

merits regarding improper motions filed by a non-party and joined by Robert Veigel.

410} We note as well that, even were we to assume that the motions were proper

and that the August 24, 2017 order dismissing the case for the lack of prosecution

was in error, the district court nonetheless substantively disposed of Defendants’

pending motions in its January 2018 Order, holding that “both motions are

restatements of arguments already addressed by [the district court or]. . . arguments

that were, or could have been, raised in prior briefing.” See Unified Contractor, Inc.

v. Albuquerque Hous. Auth., 2017-NMCA-060, § 77, 400 P.3d 290 (holding that a

district court does not abuse its discretion in denying a motion for reconsideration

that was merely a restatement of the arguments the defendants had already advanced

or arguments that could have been raised in prior briefing). Defendants contend their

motions to reconsider, reopen, and vacate all orders for Plaintiff were not

restatements of arguments already addressed by the district court and that their

review of the pleadings, we agree with the district court that Defendants’ motions

were not properly focused on the relevant orders at issue, and instead presented

arguments that should have been raised earlier or that have already been addressed

by the district court. See id. Thus, we conclude that the district court did not err in

resolving Defendants’ motions and denying reinstatement.

Ul. |The District Court’s Actions During the Pending Appeals Were Proper

and Within Its Jurisdiction

4113, Defendants next argue that the district court acted without jurisdiction during

the pendency of prior appeals before this Court. Defendants highlight several district

court orders that were allegedly improper and without jurisdiction: the February 11,

2013 order appointing a special master for the foreclosure sale; the March 19, 2013

order first setting a $100,000 bond to stay the foreclosure sale while the second

appeal was pending, in response to Defendants’ own motion; the May 20, 2015 order

awarding the initial $100,000 supersedeas bond to Plaintiff after Defendants’

unsuccessful second appeal; and the June 2, 2015 order setting the second $150,000

supersedeas bond to stay the confirmation of the foreclosure sale.* Contrary to

3Defendants also included the June 2016 Order awarding the second $150,000
supersedeas bond to Plaintiff as improper. However, there was no appeal pending

before this Court at that time.

Defendants’ contentions, we conclude the district court acted within its jurisdiction

Defendants’ objections should have been raised in earlier appeals and are barred by

the law of the case. However, to the extent the order setting the second $150,000

supersedeas bond was proper, we briefly address the merits of the argument

4123, While the general rule is that “[t]he taking of appeal divests the district court

of jurisdiction of the cause of action and transfers it to the appellate court[,]” Corbin

v. State Farm Ins. Co., 1990-NMSC-014, § 10, 109 N.M. 589, 788 P.2d 345, the rule

is not without exceptions. Cases involving a foreclosure suit, as here, involve two

distinct adjudications—(1) the judgment that forecloses and (2) the judgment that

directs the sale—and the district court retains “continuing supervisory jurisdiction”

over the foreclosure sale. See Speckner v. Riebold, 1974-NMSC-029, 4§ 8-9, 86

N.M. 275, 523 P.2d 10 (“[T]here are two separate adjudications . . . The initial

judgment operates to foreclose the mortgage. It declares the rights of the parties in

the mortgaged premises. . . . The second part of the judgment directs that the

mortgaged property be sold, and fixes the manner and terms of the sale.”). The

district court has “certain discretionary powers to order such a sale on any terms or

in any manner, subject only to statutory prohibitions and review for abuse of

discretion.” /d. § 9. Thus, it was within the district court’s jurisdiction to exercise 1ts

discretionary powers to facilitate the foreclosure sale by appointing a special master.

4133. Yet another exception exists for supersedeas bonds, over which the district

062(D) NMRA (“When an appeal is taken, the appellant by giving a supersedeas

bond may obtain a stay .. . The bond may be given at or after the time of filing the

notice of appeal....The stay is effective when the supersedeas bond is approved by

the district court.” (emphasis added)); Rule 12-207(B) NMRA (“Application for a

stay of the judgment or order of a district court pending appeal, or for approval of a

supersedeas bond, or for an order suspending, modifying, restoring or granting an

injunction during the pendency of an appeal must be made in the first instance in the

district court.” (emphasis added)); /n re Estate of Gardner, 1991-NMCA-039, 4 1,

112 N.M. 536, 817 P.2d 729 (“[T]he district court may act on matters of supersedeas

and stay during the pendency of an appeal.”). Consequently, although the district

court’s acts—its appointment of a special master, stay of foreclosure sale, stay of the

confirmation sale, and its approval (or grant) of the related supersedeas bonds in case

of unsuccessful appeals—occurred after the notices of appeal were filed, the court

had jurisdiction to act as it did.

Il. The District Court’s Nullification of the May 2015 Deeds Was Proper

Except As It Pertained To Certain Unencumbered Property

414} Defendants next argue that the district court’s order nullifying the May 2015

Deeds was improper for several reasons, namely, lack of subject matter jurisdiction

over certain unencumbered property, ineffective lis pendens, and lack of personal

jurisdiction over certain non-parties.

4153 The May 2015 Deeds at issue were special warranty deeds filed on May 19,

2015, the same day as the foreclosure sale, purporting to convey real property

interests in Quay and Guadalupe County to Steve Veigel from three Veigel family

entities, Terra XXI Ltd., Terra Partners, and S.S. Williams Testamentary Trust

(SSWT Trust). Notably, eight years earlier, in 2007, notice of lis pendens was filed

on the foreclosed properties, which included all property at issue in the May 2015

Deeds except for an 80-acre segment—specifically, West 1/2 (W/2), Southwest 1/4

(SW/4) of Section 14, Township Seven North (7N), Range Twenty-six East (26E)

N.M.P.M in Guadalupe County (the unencumbered property). In addition, in the

month prior to the May 2015 foreclosure sale, the Special Master published the

required notices of sale in Quay and Guadalupe County newspapers.

416} We initially address Defendants’ contention, which Plaintiff does not dispute,

that the district court lacked subject matter jurisdiction over the unencumbered

property in Guadalupe County that was included within the district court’s

nullification of the May 2015 deeds.‘ In this regard, we pause to note that Defendants

failed to provide the May 2015 Deeds as a part of the record in the present case,

‘This argument was clarified in Defendants’ motion to reconsider our initial
opinion filed in this case. Our analysis is based on that motion, Plaintiff's response

thereto, as well as the parties’ briefs and record proper.

directing us instead to the companion case’s record via a footnote in their brief in

chief. “It is the duty of the appellant to provide a record adequate to review the issues

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on appeal.” Sandoval v. Baker Hughes Oilfield Operations, Inc., 2009-NMCA-095,

4 65, 146 N.M. 853, 215 P.3d 791. Nevertheless, we may take judicial notice of

pertinent adjudicative facts when “a fact is not subject to reasonable dispute.” Rule

11-201(B)(2) NMRA (“The court may judicially notice a fact that is not subject to

reasonable dispute because it . . . can be accurately and readily determined from

sources whose accuracy cannot reasonably be questioned.”’).

417}, Our extensive review of the record, including the mortgage documents,

notices of sale, and the special master’s report, as well as the May 2015 Deeds,

indicate that the certain unencumbered property was not a part of the foreclosure

action, and should have been excepted from the nullification of the May 2015

Deeds.° Therefore, to the extent that this unencumbered property was implicated in

the nullification of the May 2015 Deeds, we reverse and remand the nullification

only as it pertains to the unencumbered property. We otherwise conclude that the

nullification of the May 2015 Deeds regarding the remainder of the properties

> In Plaintiff’s response to Defendants’ motion for rehearing, they conceded
that “the Order declaring the [May 2015 Deeds] null and void should have excepted
the [unencumbered property]. . . [and] [nJeither [Plaintiff] nor [Plaintiff]’s successor

in interest claims any interest in that 80-acres [of property].

therein was appropriate, and we further address Defendants’ challenges only as they

pertain to the remaining foreclosed properties contained in the May 2015 Deeds.

4183 In this regard, Defendants claim that the nullification of the May 2015 Deeds

was improper because the notices of lis pendens filed on June 29, 2007, in Quay

County _and_in Guadalupe County on September 13, 2007, would be of “no value”

under NMSA 1978, Section 38-1-15 (1873-74), since Plaintiff did not serve

Defendants within the sixty days. We disagree.

193 We initially point out that, as we noted in the related case regarding a similar

deed conveyance to Steve Veigel in July 2015, see Rabo Agrifinance, LLC v. Steve

Veigel, No. A-1-CA-37199, mem. op. (N.M. Ct. App. January 9, 2020), the purpose

of lis pendens is to give constructive notice to bona fide purchasers, and Steve Veigel

is not a bona fide purchaser, considering the nature of his long-term involvement in

the case, up to and including the timing of the deed conveyance on the same day as

the foreclosure sale. See Kokoricha v. Estate of Keiner, 2010-NMCA-053, ¥ 14, 148

N.M. 322, 236 P.3d 41 (“The result of filing a formal notice of lis pendens is that

anyone dealing with the property in a subsequent transaction is prevented from being

a bona fide purchaser without notice.” (internal quotation marks and citation

omitted)). Our review of the record strongly suggests that Defendants purposefully

clouded title, given the timing and the nature of the purported transfer.

20} Defendants further argue that the district court lacked personal jurisdiction

over non-parties, 1

Deeds and Steve Veigel, the grantee of the May 2015 Deeds and a non-party in this

case who was denied the right to intervene. Even assuming, arguendo, the

nullification of the May 2015 Deeds was improper as a matter of law due to lack of

personal jurisdiction, the May 2015 Deeds could only convey to Steve Veigel

redemption rights to any foreclosed properties therein. See Ovecka v. Burlington N.

Santa Fe Ry. Co., 2008-NMCA-140, 9.9, 145 N.M. 113, 194 P.3d 728 (“But when

no facts are in dispute and the undisputed facts lend themselves to only one

conclusion, the issue may properly be decided as a matter of law.”); Springer Corp.

v. Kirkeby-Natus, 1969-NMSC-045, 4 10, 80 N.M. 206, 453 P.2d 376 (holding that,

in a case in which an omitted junior mortgagee foreclosed its mortgage, “[t]he only

absolute right of a junior mortgagee, as against a senior mortgagee, is the right to

redeem from the senior mortgagee.”). The undisputed facts provide that “the court

set the redemption period after judicial sale at one month” in accordance with the

terms of the 1994 mortgage. As such, the redemption period expired on June 4, 2016,

one month after Judge Tatum’s May 4, 2016 order approving the foreclosure sale,

and Defendants do not point to any effort by Steve Veigel to redeem the foreclosed

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property during that time. See NMSA 1978, § 39-5-18 (2007) (providing that real

estate may be redeemed by a former defendant owner or any junior lienholder whose

rights were determined in the foreclosure proceeding within nine months from the

date of sale); NMSA 1978, § 39-5-19 (1965) (The parties to_any_ such instrument

WOE ENV NA Lk 4

may, by its terms, shorten the redemption period to not less than one monthf.]’’);

Morgan v. Texas Am. Bank/Levelland, 1990-NMSC-058, § 11, 110 N.M. 184, 793

P.2d 1337 (holding that the right of redemption arises when the court confirms it and

the purchaser receives an interest in the property rendering the “purchase”

completed). Moreover, Plaintiffs failure to name SSWT Trust regarding its interest

in the lis pendens or in the foreclosure action was inadvertent, and the record does

not suggest any intentional omission, considering the numerosity and relatedness of

named parties and the nature of SSWT’s interest. See W. Bank, Santa Fe v. Fluid

Assets Dev. Corp., 1991-NMSC-020, ¢ 19, 111 N.M. 458, 806 P.2d 1048 (“When

the mortgagee inadvertently fails to notify a junior lienholder, the mortgagee’s

equitable rights are not diminished and . . . in the trial court’s discretion, the

judgment may operate to extinguish the junior lien, with only the right to redeem

remaining in the junior lienor[.|’). Accordingly, we conclude that once the

redemption period expired, any property rights to the foreclosed properties, if any,

that Steve Veigel could assert as stemming from SSWT Trust expired as well.

18
19

IV. The District Court’s Award of the Supersedeas Bonds to Plaintiff Was
Proper

0} Defendants next challenge the district court’s award of $100,000 and

N
—

$150,000 in supersedeas bonds to Plaintiff following its unsuccessful second and

third appeals, respectively. We again note that Defendants should have challenged

the award of the first supersedeas bond in the thirda

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subsequent bond is challenged, we briefly address and resolve the issue. Defendants

argue that the district court erred in not conditioning the release of supersedeas bonds

nor requiring Plaintiff to demonstrate evidence of actual damages suffered. We

disagree.

1; The purpose of a supersedeas bond is to maintain the status quo during an

appeal. See Khalsa v. Levinson, 2003-NMCA-018, 9 7, 133 N.M. 206, 62 P.3d 297

(“Supersedeas is designed to protect the appellee against loss and to maintain the

status quo during the pendency of the appeal.”). Moreover, we have held that

“IsJureties should not be excused except for the best of reasons, and a liberal

construction should be indulged against them.” /d. ¥ 10; see also Monte Rico Milling

& Mining Co. v. U.S. Fid. & Guar. Co., 1930-NMSC-121, 4 15,35 N.M. 616, 5 P.2d

195 (stating that any ambiguity will be more strictly construed against the surety and

in favor of the obligee in order to give full effect to the purpose of the undertaking).

4223. Under the relevant statutes and rules, supersedeas bonds can secure payment

towards “the judgment” as well as “all damages and costs finally adjudged against

the appellant.” NMSA 1978, § 39-3-22(A), (B) (2007); see also Rule 1-062(D)

(providing that a supersedeas bond “shall be conditioned for the satisfaction of and

compliance with the judgment in full together with costs, interest and damages for

delay .. . if the judgment is affirmed[. |” (emphasis added)). Moreover, under Rule

“(1) is arbitrary, capricious or reflects an abuse of discretion; (2) is not supported by

substantial evidence; or (3) is otherwise not in accordance with law.” See Jones v.

Harris News, Inc., 2010-NMCA-088, 44, 148 N.M. 612, 241 P.3d 613

3} Defendants insist that under NMSA 1978, Section 39-3-9 (1933), rental

values should be the measure of damages in a stay involving title to property, but we

have held to the contrary. “Section 39-3-9 directs a district court to set the

supersedeas bond at an amount that indemnifies the appellee for ‘all damages’ and

states that the ‘rental value’ of the property shall be considered an element of

damages, not the sole measure.” Charter Bank y. Francoeur, 2012-NMCA-078,

4 33, 287 P.3d 333 (emphasis added); see id. (concluding that “[t]he district court

therefore did not abuse its discretion under Section 39-3-9 by considering potential

damages to [the p]laintiff outside of the rental value of the property’’). District courts

have the discretion to determine the proper amount for a supersedeas bond,

considering “a// damages” that might flow from the stay. Charter Bank, 2012-

NMCA-078, § 34 (emphasis added).

4} Here, the district court required Defendants to pay a bond of $100,000

following Defendants’ motion to stay the foreclosure sale during the second appeal.

During Defendants’ third appeal, Defendants paid a second supersedeas bond of

$150,000 to stay the confirmation of the foreclosure sale. In addition to awarding

2| the supersedeas bond to Plaintiff in its June 2016 Order, the district court entered_a
3 deficiency judgment in the amount of $1,478,034.37 in favor of Plaintiff.
A Accordingly, in considering our liberal construction against excusing sureties and
5|_ our favorable view of upholding the district court’s decision regarding supersedeas
6]| we conclude that the district court acted in accordance with law and did not abuse
7| its discretion in awarding the supersedeas bonds to Plaintiff.
8| CONCLUSION
9} 25} For the reasons set forth above, we affirm in part and remand in part.

10] 20; IT ISSO ORDERED.

1 1 . iF

12 J. MILES HANISEE, Chief Judge

13] WE CONCUR:

14) Aft nm Borger oleh

15] KRISTINA BOGARDUS, Judge

17| ZACHARY A. IVES, Judge

March 2, 2020- Rabo Agrifinance, LLC v. Terra XXI, LTD, No. A-1-CA-37117

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