Graf v. Western Mortgage ( 2011 )

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2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 SANDRA GRAF,
8 Plaintiff-Appellant,
9 v. NO. 30,937
10 WESTERN MORTGAGE, L.P. and
11 ARNO MASSEY, Individually,
12 Defendants-Appellees.
13 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
14 David P. Reeb, Jr., Judge
15 Mark S. Sweetman
16 Clovis, NM
17 for Appellant
18 Doerr & Knudson, P.A.
19 Stephen Doerr
20 Portales, NM
21 for Appellees
22 MEMORANDUM OPINION
23 VIGIL, Judge.
24 Plaintiff appeals the judgment in favor of Defendants on her legal and equitable
25 claims arising out of a transaction in which she quitclaimed certain property to
1 Defendants. In this Court’s notice of proposed summary disposition, we proposed to
2 affirm. Plaintiff has filed a memorandum in opposition, which we have duly
3 considered. As we are not persuaded by her arguments, we affirm.
4 Summary Judgment on the Claim of Forgery
5 Plaintiff asserts that the district court erred in granting summary judgment on
6 Plaintiff’s claim of forgery. [DS 9] In our notice of proposed summary disposition,
7 we proposed to hold that the district court did not err, since the forgery statute, NMSA
8 1978, Section 30-16-10 (2006), does not expressly provide for a private right of
9 action. See Eisert v. Archdiocese of Santa Fe, 2009-NMCA-042, ¶ 29, 146 N.M. 179,
10 207 P.3d 1156 (stating that when a criminal statute does not provide for a private right
11 of action, we generally conclude that there is no legislative intent to create such a
12 right).
13 In response, Plaintiff argues that the purpose of the statute demonstrates an
14 intent to create a private right of action. [MIO 2-3] In particular, she argues that
15 NMSA 1978, Section 31-17-1 (2005), reflects an intent to create such a right. We
16 disagree. By its own terms, Section 31-17-1 permits the district court in a criminal
17 case to award restitution as part of a defendant’s sentence for harm caused by criminal
18 acts to which the defendant has pled guilty or of which he has been convicted. Section
19 31-17-1 does not reflect an intent to create a private right of action by a litigant in a
20 civil case.
2
1 Plaintiff also argues that general tort law permits her to bring a claim for
2 forgery. In support of this argument, she cites to case law regarding prima facie torts.
3 [MIO 3] However, prima facie tort is its own, separate legal theory, see Schmitz v.
4 Smentowski, 109 N.M. 386, 394, 785 P.2d 726, 734 (1990) (recognizing a cause of
5 action for prima facie tort), and Plaintiff never preserved any argument that her
6 complaint with respect to forgery could be construed as a claim for prima facie tort.
7 Accordingly, she cannot assert error on appeal based on a claim for prima facie tort.
8 See Woolwine v. Furr’s, Inc., 106 N.M. 492, 496, 745 P.2d 717, 721 (Ct. App. 1987)
9 (“To preserve an issue for review on appeal, it must appear that appellant fairly
10 invoked a ruling of the trial court on the same grounds argued in the appellate court.”).
11 Furthermore, Plaintiff’s docketing statement does not explain how she would meet the
12 first element of the tort—a “lawful” act by the defendant—when her forgery claim is
13 premised on a violation of the criminal code. See Silverman v. Progressive Broad.,
14 Inc., 1998-NMCA-107, ¶ 36, 125 N.M. 500, 964 P.2d 61 (stating that a claim based
15 on a violation of law does not meet the first element of a prima facie tort).
16 Plaintiff continues to cite Marler v. Allen, 93 N.M. 452, 601 P.2d 85 (Ct. App.
17 1979), in support of her argument that New Mexico recognizes a private right of
18 action for forgery. [DS 10; MIO 4] However she acknowledges that, as we explained
19 in our proposed summary disposition, Marler considered only whether a punitive
20 damages award was excessive and never discussed the particular cause of action
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1 brought by the plaintiffs in that case. Marler does not support Plaintiff’s argument.
2 Although the opinion refers to the insurer’s act of forgery, it is not clear from the
3 opinion that the underlying cause of action was one for forgery. Instead, the insurer’s
4 acts of falsifying the documents could have been the basis of some other claim such
5 as some sort of unfair trade practices claim, a claim of a breach of fiduciary duty, or
6 some sort of breach of the insurance code; we cannot know because it is simply not
7 discussed in the opinion. Furthermore, even if the claim was for forgery itself, on
8 appeal, no party raised the issue of whether it was error to permit such a claim, and
9 cases are not authority for propositions not considered. See Fernandez v. Farmers
10 Ins. Co. of Ariz., 115 N.M. 622, 627, 857 P.2d 22, 27 (1993).
11 Dismissal of Plaintiff’s Claim for Improper Notarization
12 Plaintiff asserts that the district court erred in dismissing a claim based on
13 Defendant Massey’s improper acts as a notary public. [DS 11] In this Court’s notice
14 of proposed summary disposition, we pointed out that the Notary Public Act permits
15 someone harmed by the misconduct of a notary public to bring a civil action on the
16 notary public’s official bond. See NMSA 1978, § 14-12A-9(B) (2003). As Plaintiff’s
17 claim was not against Defendant Massey’s official bond as a notary public, and as no
18 other private right of action is provided in the Notary Public Act, we proposed to hold
19 that the district court did not err in dismissing any claim for a violation of the Act.
20 Plaintiff has not responded to this portion of our proposed summary disposition.
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1 Accordingly, we conclude that she has failed to demonstrate error on this basis. See
2 State v. Johnson, 107 N.M. 356, 358, 758 P.2d 306, 308 (Ct. App. 1988) (stating that
3 when a case is decided on the summary calendar, an issue is deemed abandoned where
4 a party fails to respond to the proposed disposition of the issue).
5 Exclusion of Evidence of Forgery
6 Plaintiff contends that the district court erred in granting Defendants’ motion
7 in limine to exclude evidence of Massey’s forgery of the deed. [DS 13] In our notice
8 of proposed summary disposition, we proposed to find no abuse of discretion.
9 Although the district court ruled that it would not permit the introduction of any
10 evidence of forgery, it appears that what the district court meant was that it would not
11 permit any evidence or argument about whether Massey’s underlying conduct would
12 constitute the crime of forgery, since the district court stated that it would admit
13 evidence of Massey’s conduct in support of Plaintiff’s theory that Massey was trying
14 to defraud her of her property. [RP 252] We noted that Plaintiff was permitted to
15 present evidence at trial of the two different versions of the quitclaim deed and was
16 permitted to introduce evidence supporting her theory that Massey made the
17 alterations to the deed after she signed it. [RP 431, 492] Therefore, we stated that it
18 seemed that the district court did not place any limitations on evidence of the
19 underlying conduct that Plaintiff believed constituted the crime of forgery. Because
20 it appeared that the only matter related to the claim of forgery that the district court
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1 actually excluded was any argument that Massey’s conduct might constitute the crime
2 of forgery, we proposed to find no error, since the criminal definition of forgery was
3 not a proper basis for relief in this case.
4 In response, Plaintiff repeats her argument that she should have been permitted
5 to argue that Defendant Massey’s conduct constituted the crime of forgery. [MIO 5-6]
6 However, as she has presented no legal theory under which such argument would have
7 been proper, we find no abuse of discretion in the district court’s ruling. See
8 Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our
9 courts have repeatedly held that, in summary calendar cases, the burden is on the party
10 opposing the proposed disposition to clearly point out errors in fact or law.”).
11 Exclusion of Evidence of a Violation of the Notary Public Act
12 Plaintiff contends that the district court erred in granting Defendants’ motion
13 in limine to prohibit Plaintiff from offering evidence of her claim that Massey’s
14 conduct violated the Notary Public Act. [DS 15] In our notice of proposed summary
15 disposition, we proposed to hold that since the Notary Public Act would not provide
16 Plaintiff with any relief in this case, the district court’s ruling preventing Plaintiff from
17 arguing that Massey’s conduct violated the Act was not an abuse of discretion. We
18 noted that it did not appear that the district court actually prohibited Plaintiff from
19 introducing evidence regarding the underlying facts on which she bases her argument,
20 since Plaintiff was permitted to testify about Massey’s conduct with respect to
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1 notarizing the deed in order to support her theory that Massey changed the deed with
2 the intent to defraud her, as well as to testify to her opinion that he had not properly
3 notarized the document. [RP 431]
4 In Plaintiff’s memorandum in opposition, she continues to assert that she should
5 have been permitted to argue that Defendant Massey’s conduct was a violation of the
6 Act. [MIO 5-6] As she has provided no legal theory under which such argument was
7 proper, we hold that the district court did not abuse its discretion. See Hennessy,
8 1998-NMCA-036, ¶ 24.
9 Equitable Relief
10 Plaintiff contends that the district court erred in declining to exercise its
11 equitable powers to grant relief in this case because Plaintiff believes the facts of this
12 case should have shocked the conscience of the court. [DS 16] In our notice of
13 proposed summary disposition, we proposed to find no abuse of the district court’s
14 discretion. Plaintiff has not responded to this portion of our proposal, and we
15 therefore conclude that she has not demonstrated reversible error on this basis. See
16 Johnson, 107 N.M. at 358, 758 P.2d at 308.
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1 Therefore, for the reasons stated in this opinion and in our notice of proposed
2 summary disposition, we affirm.
3 IT IS SO ORDERED.
4 _________________________
5 MICHAEL E. VIGIL, Judge
6 WE CONCUR:
7 _________________________________
8 JONATHAN B. SUTIN, Judge
9 _________________________________
10 RODERICK T. KENNEDY, Judge
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