MICHAEL D. BUSTAMANTE
This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
John M. Paternoster, District Judge
New Mexico Legal Center, P.C.
Lee Boothby
Taos, NM
for Appellants Cassutt, Hays & Friedman, P.A.
John P. Hays
Santa Fe, NM
for Appellee
MEMORANDUM OPINION
BUSTAMANTE, Judge.
{1} Enrique and Rosalie Romero (Plaintiffs) appeal from the district court's order dismissing their complaint [RP 513], and the order denying Plaintiff's motion to reconsider. [RP 555] Plaintiffs raise fourteen issues on appeal. [DS 6-13] This Court's calendar notice proposed summary affirmance. [Ct. App. File, CN1] Plaintiffs have filed a memorandum in opposition, which, as discussed below, we have duly considered. [Ct. App. File, MIO] Onewest Bank, FSB (Defendant) has filed a memorandum in support. [Ct. App. File, MIS] Unpersuaded by Plaintiffs' memorandum in opposition, we affirm.
Background
{2} In 2009, Defendant filed a foreclosure complaint against Plaintiffs in District Court Case No. D-820-CV-298 (the 2009 case). Default judgment was entered against Plaintiffs on September 9, 2009, and an order approving the sale was entered on February 18, 2011. On April 26, 2011, Plaintiffs filed a motion to set aside the default judgment in the 2009 case, and on May 12, 2011, Defendant filed a motion for enforcement of the judgment. On May 29, 2013, the district court denied Plaintiffs' motion to set aside the default judgment in the 2009 case. [MIS, pp. 1-2, Exhibit A]. {3} On May 12, 2011, Plaintiffs filed the complaint in this case. Plaintiffs allege fraud and deceit, negligent misrepresentation, unfair trade practices, intentional infliction of emotional distress; they requested that the district court set aside the default judgment in the 2009 case; and they asked for declaratory relief (this case). [RP 8] The district court ruled that, among other grounds, the claims brought in this case are compulsory counterclaims that should have been brought in the 2009 case, and it entered the order dismissing Plaintiffs' complaint. [RP 439, 513] Plaintiffs filed a motion to reconsider, Defendant responded, and the motion was denied. [RP 432, 504, 544, 552-53, 555] Plaintiffs appeal.
The Memorandum in Opposition
{4} In response to this Court's calendar notice proposing summary affirmance, Plaintiffs advance three arguments, contending that: (1) summary disposition violates the New Mexico State Constitution; (2) a foreclosure action is an in rem proceeding to which compulsory counterclaims cannot be a bar to subsequent claims; and (3) the claims asserted in this case were not compulsory counterclaims. [MIO 3-10] We are not persuaded.
1. Constitutionality of the summary calendar
{5} Plaintiffs contend that the summary calendar abrogates a claimant's right to appeal under the New Mexico Constitution, and that it violates due process, equal the 2009 case, must fail. Similarly, Plaintiffs attempts to distinguish the authority we relied on in the calendar notice as dispositive (we discuss this authority below) on the basis that an in personam rather than in rem remedy was pursued in those cases, must fail. [MIO 10] Finally, for the reasons fully discussed in the calendar notice and set forth below, we remain persuaded that the "opposing parties" and the "logical relationship" tests applicable to the compulsory counterclaim analysis have been met in this case. [MIO 10-13]
The order dismissing Plaintiffs' complaint
{8} In affirming the district court's order dismissing the complaint, we rely on this Court's opinions in Adams v. Key, 2008-NMCA-135, 145 N.M. 52, 193 P.3d 599 (discussing and applying the compulsory counterclaim analysis pursuant to Rule 1-013(A) NMRA), and Hefferen v. First Interstate Bank, 1983-NMCA-030, ¶¶ 18-20, 99 N.M. 531, 660 P.2d 621. {9} As in Key, the issue before us is not whether Plaintiffs' complaint is barred by general principles of res judicata. 2008-NMCA-135, ¶ 15. Moreover, we note that the salient issues on appeal do not involve the merits of the underlying claims brought in this case, i.e., whether any alleged tortious conduct occurred. Similarly, the issues we address are not about whether Plaintiffs' allegations of fraud make Rule 1- 060(B)(6) NMRA applicable or would allow a collateral attack on the default judgment of foreclosure in the 2009 case. {10} Rather, the question before us is simply whether Plaintiffs' complaint in this case sets forth compulsory counterclaims that should have been made in response to Defendant's foreclosure complaint in the 2009 case between the parties. If Plaintiffs' complaint sets forth compulsory counterclaims, those claims are barred by Rule 1-013(A) irrespective of res judicata and other principles. The failure of a party to raise a compulsory counterclaim in a prior suit is fatal to bringing that claim in a subsequent suit. Key, 2008-NMCA-135, ¶ 15. In Slide-A-Ride of Las Cruces, Inc. v. Citizens Bank of Las Cruces, we held that compulsory counterclaims that were not asserted and litigated in a prior action were deemed abandoned and could not be asserted in a later action. 1987-NMSC-018, ¶ 14, 105 N.M. 433, 733 P.2d 1316. {11} We now proceed to determine whether Rule 1-013(A) applies to bar the complaint in this case, and we propose to hold that it does. Rule 1-013(A) provides:
A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.
As we discussed in Key, Rule 1-013(A) is triggered by its "opposing party" provision. Key, 2008-NMCA-135, ¶ 17 (citing
Computer One, Inc. v. Grisham & Lawless, P.A., 1983-NMCA-030, ¶ 11 (stating that "[u]nder [Rule 1-013(A)] failure to plead a compulsory counterclaim bars a later action on that claim"). Plaintiffs defaulted in the 2009 case. The claims brought in this case asserting Defendant's tortious conduct are compulsory counterclaims in the 2009 case because they are identical in origin and subject matter, and they are logically related to and arise out of a common subject matter, whether they sound in tort or in contract. "But-for" Plaintiffs' failure to respond to the 2009 case, all of these matters could have and should have been litigated there. We hold that Rule 1-013(A) bars Plaintiffs' complaint in this case. Therefore, we affirm the district court's order dismissing the complaint.
The order denying Plaintiffs' motion to reconsider
{16} It is well-established that a district court has broad discretion in ruling upon a motion for reconsideration and will only be reversed for an abuse of that discretion. See GCM, Inc. v. Kentucky Cent. Life Ins. Co., 1997-NMSC-052, ¶ 28, 124 N.M. 186, 947 P.2d 143. "An abuse of discretion may be found only where the judge has acted arbitrarily or unreasonably under the particular circumstances." Id. (internal quotation marks and citation omitted). {17} In their motion for reconsideration, Plaintiffs continue to argue that they should prevail on the merits of their complaint filed in this case essentially because Defendant's tortious conduct caused them damages aside from the sale of the property {20} These are the principles of law articulated in the district court's letter ruling and order dismissing the complaint, and further articulated in the district court's letter ruling and order denying the motion to reconsider. [RP 439, 513, 552-54, 555] Under the circumstances, therefore, we cannot say that the district court abused its discretion in denying Plaintiffs' motion to reconsider.
Conclusion
{21} We affirm the district court's orders.
{22} IT IS SO ORDERED.
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MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:
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JONATHAN B. SUTIN, Judge
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M. MONICA ZAMORA, Judge