Fleming v. Torres ( 2012 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 BURK FLEMING and LONNIE
3 SHAW (Assignees of Robert L. Humphrey),
4 Plaintiffs-Appellees,
5 v. NO. 31,600
6 PETE Q. TORRES, ET AL.,
7 Defendants,
8 ROSEMARY MCDONALD (TORRES),
9 Defendant-Appellant.
10 APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY
11 Gary M. Jeffreys, District Judge
12 Lopez, Dietzel & Perkins, P.C.
13 William John Perkins
14 Silver City, NM
15 for Appellee Shaw
16 Jeffrey W. Smith
17 Deming, NM
18 for Appellee Fleming
19 Peter A. Keys
1 Silver City, NM
2 for Appellant
3 MEMORANDUM OPINION
4 VIGIL, Judge.
5 Appellant Rosemary McDonald Torres appeals the order quashing a peremptory
6 challenge to excuse the district judge and sanctioning her attorney. We proposed to
7 affirm in a calendar notice, and we have received a response from Appellant. We
8 have carefully considered Appellant’s arguments, but we are not persuaded that our
9 proposed disposition is incorrect. Therefore, we affirm.
10 Appellant continues to claim that she was not a party to the case below and was
11 not represented by Mr. Hosford in the proceedings in district court. Approximately
12 eight and one-half years after judgment was entered in this case, Appellant filed a
13 motion claiming that she is an indispensable party and was not included in the
14 proceedings. In addition, Appellant moved to excuse the district judge.
15 As discussed in our calendar notice, the documents filed in the district court
16 show that Appellant participated and was represented throughout the proceedings
17 below. She was deposed, she signed pleadings and documents, and her attorney
18 conceded that she was served as a party defendant. The district court specifically
19 found that there is a “plethora” of pleadings throughout the record proper to show that
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1 Appellant was included as a party in the case. We hold that Appellant was a party to
2 the case and fully participated in the proceedings.
3 In addition, the documents filed in the record proper show that Appellant was
4 represented by Mr. Hosford. Appellant claims that there are no “written” documents
5 indicating that she was informed of a conflict of interest. [MIO 5-6] As noted in our
6 calendar notice, however, Appellant did not raise an objection in the district court
7 based on her current claim of a conflict of interest. Because the argument was not
8 raised in the district court, there was no opportunity for the filing of any
9 documentation or the presentation of any evidence to dispute a conflict-of-interest
10 claim. Furthermore, as explained in our calendar notice, there is nothing to show that
11 Mr. Hosford was involved with the case when it was being handled by another
12 attorney, there is nothing to show that Mr. Hosford was aware of the case at the time
13 of the other attorney’s involvement, and Appellant has not demonstrated that Mr.
14 Hosford actively represented conflicting interests or that his performance was affected
15 in any way. We hold that Appellant has not demonstrated a conflict of interest in this
16 case.
17 Appellant claims that the judgment did not “award anything to her in her
18 name.” [MIO 4] Appellant did not present this argument to the district court and,
19 therefore, it was not properly preserved for appeal. See Woolwine v. Furr’s, Inc., 106
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1 N.M. 492, 496, 745 P.2d 717, 721 (Ct. App. 1987) (“To preserve an issue for review
2 on appeal, it must appear that appellant fairly invoked a ruling of the trial court on the
3 same grounds argued in the appellate court.”). Moreover, the district court’s findings
4 refer to Defendants together as “Torres.” [RP 863] The judgment refers to “Torres”
5 or to “Torres’ rights.” [RP 894-898] It is clear that the judgment was awarded to both
6 Pete Torres and to Appellant Rosemary Torres. Any dispute as to the collection of the
7 judgment is between Pete and Rosemary Torres.
8 For the reasons discussed in this opinion and in our calendar notice, we affirm
9 the order of the district court.
10 IT IS SO ORDERED.
11 __________________________________
12 MICHAEL E. VIGIL, Judge
13 WE CONCUR:
14 _________________________________
15 CYNTHIA A. FRY, Judge
16 _________________________________
17 LINDA M. VANZI, Judge
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