Bernstein v. Gaffney

FRY, Judge.

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 BERNALILLO COUNTY
Clay Campbell, District Judge

Robert Bernstein
Albuquerque, NM
Pro Se Appellee Gary Gaffney
Becky Gaffney
Albuquerque, NM
Pro Se Appellants

MEMORANDUM OPINION FRY, Judge.

{1} Gary Gaffney and Becky Gaffney (Defendants) appeal from the district court's order dismissing their appeal from an on-record metropolitan court judgment of restitution under the Owner-Residents Relations Act. [RP 24] This Court's calendar notice proposed summary affirmance. [CN1] Defendant has filed a memorandum in opposition to the calendar notice. [MIO, top document] After due consideration, however, we affirm.

DISCUSSION

{2} In the memorandum, Defendants argue that they were denied due process in the metropolitan court on the merits, in the district court when it dismissed their appeal, and now in this Court because we propose to affirm the district court's dismissal. [MIO, top document] We remain unpersuaded. {3} Initially, we note that Defendant's memorandum does not address the analysis or any of the authorities set forth in the calendar notice. See State v. Sisneros, 1982-NMSC-068, ¶ 7, 98 N.M. 201, 647 P.2d 403 (holding that the opposing party must come forward and specifically point to error in fact or in law in the proposed disposition). Second, we remain persuaded that the calendar notice analysis, and the authorities cited therein, including the rules promulgated by the Supreme Court, support affirmance of the district court's decision to dismiss Defendants appeal in accordance with applicable law. See, e.g., Pierce v. State, 1996-NMSC-001, ¶¶ 17, 52, 55, 121 N.M. 212, 910 P.2d 288 (courts look to statutes as the state law that determines the vested rights created and defined by the legislative intent, rights which {6} In an on-record appeal from metropolitan court, neither the district court nor this Court conduct a new trial. See Serna v. Gutierrez, 2013-NMCA-026, ¶ 13, 297 P.3d 1238. Moreover, notice to Defendants that they have the right and the obligation to record the proceedings is readily available to Defendants in the metropolitan court rules. [RP 14] Rule 3-708(A) NMRA states that: "Every civil proceeding in the metropolitan court shall be tape recorded if requested by a party." Rule 3-706(E)(5) NMRA states that the appellant shall file a copy of the record on appeal from metropolitan court to district court, which shall consist of any transcripts of the proceedings, either stenographically made or tape recorded. Rule 3-202(B)(4) NMRA states that the summons shall include

a notice that the defendant may request prior to any proceeding that the proceeding may be recorded. The notice shall advise the defendant if a tape recording is not made of the proceedings it may effectively preclude the defendant from appealing to the district court.

In this case, the record proper indicates that, in accordance with Rule 3-202(B)(4), Plaintiff properly notified Defendants in their metropolitan court summons that Defendants may request a recording of the proceedings and the consequences of not doing so. [RP 14, final paragraph in bold capital letters] {7} Accordingly, we hold that Appellant's failure to make a record of the metropolitan court trial precludes appeal to district court. See generallyMichaluk v. Burke, 1987-NMCA-044, ¶ 25, 105 N.M. 670, 735 P.2d 1176 ("Where the record on appeal is incomplete, the ruling of the trial court is presumed to be supported by the evidence."); see also Sandoval v. Baker Hughes Oilfield Operations, Inc., 2009-NMCA-095, ¶ 65, 146 N.M. 853, 215 P.3d 791(observing that "[i]t is the duty of the appellant to provide a record adequate to review the issues on appeal").

CONCLUSION

{8} We affirm the district court's dismissal of Defendants' appeal from the metropolitan court on-record judgment of restitution.

{9} IT IS SO ORDERED.

/s/_________

CYNTHIA A. FRY, Judge

WE CONCUR:

/s/_________
MICHAEL E. VIGIL, Judge

/s/
_________
TIMOTHY L. GARCIA, Judge