Downs v. Hunter's Ridge ( 2010 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
4 errors or other deviations from the official paper version filed by the Court of Appeals and does
5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 ROY A. DOWNS,
8 Plaintiff-Appellant,
9 v. No. 30,341
10 HUNTER’S RIDGE APARTMENTS,
11 Defendant-Appellee.
12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Beatrice J. Brickhouse, District Judge
14 Roy A. Downs
15 Albuquerque, NM
16 Pro Se Appellant
17 Claude Eugene Vance
18 Albuquerque, NM
19 for Appellee
20 MEMORANDUM OPINION
21 SUTIN, Judge.
22 Appellant appeals pro se from the district court’s order dismissing his on-record
23 metropolitan court appeal. [RP 68-69, 70] We issued a calendar notice proposing to
1 summarily affirm the district court’s order of dismissal. Appellant filed a timely
2 memorandum in opposition, which we have duly considered. Remaining unpersuaded
3 that the district court erred, we affirm.
4 DISCUSSION
5 The district court dismissed Appellant’s appeal based on the lack of an adequate
6 record. [RP 68-69] The district court noted that neither party requested a recording
7 of the metropolitan court proceedings. [RP 68] Thus, Appellant did not preserve a
8 record in this case despite being informed by the metropolitan court that “[i]f you do
9 not ask for a tape recording, you will not have a record of the proceedings to take to
10 the district court for any appeal.” [RP 30] The district court noted that it was limited
11 to the review of the proceedings below and that, without a proper record, it was unable
12 to determine whether Appellant properly questioned the metropolitan court’s rulings
13 and preserved his issues for appeal. [RP 69]
14 We continue to agree with the district court that the failure to preserve a record
15 of the metropolitan court trial effectively makes this appeal unreviewable for all
16 claims arising out of that proceeding. Appeals from metropolitan court are on-record
17 appeals. See NMSA 1978, § 34-8A-6(B) (1993) (stating that “[t]he metropolitan court
18 is a court of record for civil actions”); see also Rule 3-708(A) NMRA (stating that
19 “[e]very civil proceeding in the metropolitan court shall be tape recorded if requested
2
1 by a party”). Because Appellant failed to request a tape recording, the district court
2 was left without a complete record of the trial and would have no way of discerning
3 whether a particular issue was preserved for review. See Rule 1-073(O) NMRA
4 (defining the scope of review).
5 Except under rare circumstances, this Court also requires the preservation of
6 issues, and in this case we can review only what was preserved in the district court.
7 See Rule 12-208(E) NMRA; see also Woolwine v. Furr's, Inc., 106 N.M. 492, 496,
8 745 P.2d 717, 721 (Ct. App. 1987) (“To preserve an issue for review on appeal, it
9 must appear that appellant fairly invoked a ruling of the trial court on the same
10 grounds argued in the appellate court.”). It is the duty of the appellant to provide a
11 record adequate to review the issues on appeal. Dillard v. Dillard, 104 N.M. 763,
12 765, 727 P.2d 71, 73 (Ct. App. 1986). “Upon a doubtful or deficient record, every
13 presumption is indulged in favor of the correctness and regularity of the trial court’s
14 decision, and the appellate court will indulge in reasonable presumptions in support
15 of the order entered.” Reeves v. Wimberly, 107 N.M. 231, 236, 755 P.2d 75, 80 (Ct.
16 App. 1988). As we do not have a record of the entire appeal, we remain persuaded
17 that our preservation rules have not been met.
18 Although Appellant continues to object to the district court’s decision, he fails
19 to cite authority to support his contention that the district court erred by dismissing his
3
1 appeal. [MIO 2] We therefore reject Appellant’s arguments that the appeal to the
2 district court cannot be dismissed for lack of an adequate record, that his statement of
3 appellate issues was not considered by the district court, and that the district court
4 failed to consider the evidence in its entirety. [DS 1-2 (Issues 1, 3, 4, 5, 7, 9, 11)]
5 Without an adequate record, we are unable to address issues that go to the merits of
6 the trial proceedings.
7 With respect to Appellant’s contention that the metropolitan court or district
8 court did not consider a counterclaim [DS 1-2 (Issue 8)], our calendar notice stated
9 that we did not understand this argument. See Clayton v. Trotter, 110 N.M. 369, 373,
10 796 P.2d 262, 266 (Ct. App. 1990) (stating that the appellate court will review pro se
11 arguments to the best of its ability, but cannot respond to unintelligible arguments).
12 We noted that Appellant appeared to be referring to a counterclaim and default
13 judgment filed in another case, which were not relevant to this appeal. In addition,
14 our calendar notice stated that the docketing statement asserted claims about fairness
15 and obstruction of justice without providing any context or explanation. [DS 1-2
16 (Issues 2, 5, 6, 10)]. Appellant’s response to our calendar notice does not clarify any
17 of his issues. As these issues are not explained, we remain persuaded that it is
18 unnecessary to address them. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-
4
1 045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (stating that an appellate court need not
2 review an undeveloped argument).
3 Finally, we note that the response lists several issues that indicate that Appellant
4 does not understand the appellate process. Appellant asserts that the district court is
5 the proper defendant in this case, that the complaint he filed in district court is
6 separate from his appeal from the complaint, and that he is entitled to default
7 judgment in a complaint filed on May 10, 2010, because the district court did not
8 respond to his complaint. [MIO 2 (Nos. 1, 6, 7)] In addition, Appellant has filed a
9 motion for default judgment in this Court, requesting the Court to enter default
10 judgment based on the district court’s failure to respond to a complaint filed on June
11 10, 2010. [Motion 1-2] We are unable to understand these arguments. The appeal
12 before us in No. 30,341 is from the district court’s order dismissing his appeal from
13 metropolitan court in CV-2009-14357. As such, the defendant is not the district court
14 but Appellee Hunter’s Ridge Apartments. Based on the record before us, we have no
15 idea what complaint Appellant is referring to when he claims the district court failed
16 to respond to a complaint. To the extent that Appellant is referring to other cases,
17 those cases are not before us. We remind Appellant that the appellate court presumes
18 that the trial court is correct, and it is his burden to demonstrate that the district court
19 erred. See Farmers, Inc. v. Dal Mach. & Fabricating, Inc., 111 N.M. 6, 8, 800 P.2d
5CORRECTION PAGE: For signatures of panel, (SWV), filed 7/20/10, summary calendar case Downs v. Hunter’s
Ridge Apartments, No. 30341.
1 1063, 1065 (1990). As Appellant’s arguments concerning a default judgment are
2 unintelligible, we decline to address them. See Clayton, 110 N.M. at 373, 796 P.2d
3 at 266.
4 CONCLUSION
5 For these reasons and those set forth in the calendar notice, we affirm the
6 district court’s dismissal.
7 IT IS SO ORDERED.
8 __________________________________
9 JONATHAN B. SUTIN, Judge
10 WE CONCUR:
11 _________________________________
12 JAMES J. WECHSLER, Judge
13 _________________________________
14 MICHAEL E. VIGIL, Judge
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