May 23, 2013 – Ronald Bernier, as personal representative of the Estate of Therese Bernier, deceased and as Trustee of the Therese Bernier Trust, No. 31,607

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: May 23, 2013
NO. 31,607
RONALD BERNIER, as personal
representative of the ESTATE OF
THERESE BERNIER, deceased
and as Trustee of the Therese Bernier
Trust,
Plaintiff-Appellant,
v.
HAROLD BERNIER, deceased,
represented by WILLIAM DOUGLAS
BERNIER, as substitute representative,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Barbara J. Vigil, District Judge
Ilyse D. Hahs, Attorney at Law, LLC
Ilyse Hahs-Brooks
Albuquerque, NM
G. Holdt Garver Chartered
G. Holdt Garver
Albuquerque, NM

L. Helen Bennett
Albuquerque, NM
for Appellant
Cuddy & McCarthy, LLP
Aaron J. Wolf
Y. Jun Roh
Santa Fe, NM
for Appellee

OPINION
SUTIN, Judge.
{1} 	In this case, the district court assessed a sanction under Rule 1-011 NMRA
against the named Plaintiff, Therese Bernier (Mrs. Bernier), where her son, Ronald
Bernier (Ronald), acting as Mrs. Bernier’s attorney in fact, commenced and
prosecuted a lawsuit that lacked good ground. Within that context, we are called upon
to determine whether the district court erred in sanctioning Mrs. Bernier under Rule
1-011 in the amount of attorney fees for Defendant Harold Bernier (Harold), deceased,
represented by William Douglas Bernier (William), as substitute representative, for
Ronald’s wrongful conduct. We also consider whether the court abused its discretion
in awarding William’s costs pursuant to Rule 1-054 NMRA.
{2} 	We hold that the district court did not err in determining that Ronald lacked a
good ground on which to file the underlying lawsuit. 	We also hold that because
Ronald was acting pursuant to Mrs. Bernier’s power of attorney, Mrs. Bernier was
liable for Ronald’s wrongful acts. Thus, the district court did not abuse its discretion
by sanctioning Mrs. Bernier and in awarding William his costs. 	Accordingly, we
affirm the district court. Finally, although William asks for his attorney fees on appeal,
we conclude that there exists no basis upon which we can award such fees.

2
BACKGROUND
{3} 	The following undisputed facts were found by the district court. At the center
of this case was a Walgreen Company (Walgreen) stock certificate that evidenced
ownership of 25,696 shares of stock in that company. The certificate was in the name
of Therese Bernier and also in the name of her trust. The stock certificate represented
a portion of the stock that Mrs. Bernier’s late husband had accumulated over the
course of his working life with Walgreen. Mrs. Bernier was in her nineties throughout
the underlying proceedings, and on June 17, 2012, while this appeal was pending,
Mrs. Bernier died.
{4} 	Before the start of litigation in this matter, Mrs. Bernier granted Ronald her
power of attorney to, among other things, act on her behalf as her “agent” in “claims
and litigation.” 	In April 2007, acting pursuant to that power of attorney as Mrs.
Bernier’s attorney-in-fact, Ronald retained legal counsel to commence litigation in this
matter on behalf of Mrs. Bernier. 	At all times during the underlying proceedings,
Ronald represented and acted on behalf of Mrs. Bernier as her attorney-in-fact, and
when Mrs. Bernier died, Ronald, as personal representative of Mrs. Bernier’s estate,
was substituted as the plaintiff in this case.
{5} 	Harold Bernier was the brother of Mrs. Bernier’s late husband and, therefore,
he was also Ronald’s uncle. In 2006, Ronald and his sister, Beverly Kedzior (who

Judge Vigil was sworn in on December 7, 2012, as a Justice of the New
Mexico Supreme Court.
3
was Mrs. Bernier’s daughter and Harold’s niece), approached their uncle Harold and
asked him to hold the Walgreen stock certificate because they wanted a trusted third
party to hold it until they both agreed that it should be returned to Ronald when it was
needed for Mrs. Bernier’s care. 	Harold agreed to hold the stock certificate until
Ronald and Beverly reached an agreement about its distribution or until a court
ordered its relinquishment.
{6} 	In 	December 	2006, 	Beverly 	filed 	a 	petition 	for 	guardianship 	and
conservatorship against Mrs. Bernier in a sequestered case presided over by then
district court judge, Judge Barbara Vigil 1 (the sequestered case). The sequestered case
was based on Beverly’s allegations that Mrs. Bernier was not competent to manage
her own affairs and that Ronald was misappropriating or mismanaging Mrs. Bernier’s
estate. Harold knew about the sequestered case, and he also knew that there was an
ongoing dispute between Ronald and Beverly that included concerns regarding Mrs.
Bernier’s ability to manage her own finances and Ronald’s management of Mrs.
Bernier’s finances.
{7} 	In January 2007, Ronald caused a letter to be sent to Harold, on Mrs. Bernier’s
behalf, by an attorney, demanding that Harold return the stock certificate to Mrs.

See NMSA 1978, § 55-7-603 (2005) (official cmts.) (stating that replevin
“enables a bailee faced with conflicting claims to [personal property] to compel the
claimants to litigate their claims with each other rather than with him”).
4
Bernier. Harold did not return the certificate. Ronald knew that Harold did not have
any financial interest in or claim to the stock certificate, nor was Harold claiming any
fees for holding the certificate.
{8} 	On April 30, 2007, through legal counsel, Ronald caused a complaint to be filed
in Mrs. Bernier’s name as Plaintiff, against Harold, for replevin, declaratory judgment,
temporary injunction, fraud, breach of contract, resulting trust, and prima facie tort.
Among other averments, the complaint alleged that Mrs. Bernier entrusted the stock
certificate to Harold and that Harold, by failing to comply with a demand to return the
certificate, wrongfully refused to return the certificate.
{9} 	Harold’s answer to the complaint explained that Ronald had asked him to hold
the stock certificate because Ronald and Beverly wanted a trusted third party to hold
it until they both agreed that it should be returned. Harold specifically disclaimed any
personal or financial interest in the stock certificate and explained that he did not
return it to Mrs. Bernier upon her demand because, among other reasons, Ronald and
Beverly were engaged in a dispute regarding Ronald’s management of Mrs. Bernier’s
finances. With his answer to the complaint, Harold filed a claim for interpleader,2
asking the court to hold the stock certificate until the dispute between Ronald and

5
Beverly was settled. 	Ronald then caused a motion to be filed for partial summary
judgment for replevin and declaratory relief and for dismissal of the counterclaim for
interpleader. The district court granted the interpleader and accepted possession of
the stock certificate, and it denied the motion for partial summary judgment because,
among other reasons, “there was a big hole in the evidence as to where [the stock]
went” as between Mrs. Bernier and her trust.
{10} 	In February 2008, Ronald caused a renewed motion for partial summary
judgment for replevin and declaratory relief and for dismissal of the counterclaim for
interpleader to be filed. In May 2008, the district court held a hearing on Ronald’s
renewed motion. Satisfied that Mrs. Bernier was the rightful owner of the stock, the
district court granted “a partial summary judgment[] as . . . to replevin[] of the stock
certificate and the declaratory relief” and simultaneously acknowledged that by
determining that the stock certificate should go to Mrs. Bernier, Harold “acheiv[ed]
the interpleader[.]” See Rule 1-022(D) NMRA (explaining that “[t]he decree of the
district court shall determine the disposition of the [interpleaded] . . . thing in
dispute”). 	Therefore, Mrs. Bernier’s motion to dismiss the counterclaim for
interpleader was denied. Because, at that point, the sequestered case was ongoing, the
district court ordered Mrs. Bernier’s counsel to apprise Judge Barbara Vigil of its
determination so that questions of how the stock certificate would be handled, to

6
whom it would go, and whether it would be used for Mrs. Bernier’s benefit, could be
resolved in the sequestered case. The district court concluded that its order resolved
all claims, leaving only the issue of damages that resulted from Harold’s alleged
wrongful retention of the stock certificate.
{11} 	Harold died on April 26, 2009. Because Ronald insisted that the case against
Harold proceed, Harold’s son, William, presumably as representative of Harold’s
estate, was substituted as Defendant on June 23, 2009. 	William rejected Ronald’s
offer to settle the damages issue for $234,000, and the issue of damages was
adjudicated in a bench trial on October 14, 2009. 	At the damages trial, Ronald
claimed that it was unjust for Harold to keep the stock certificate from Mrs. Bernier
and that Harold’s estate should be held liable for $275,718, representing the lost value
of the stock during the litigation. The district court, Judge James Hall, held in favor
of William and awarded no damages. The court reasoned “that Harold’s actions were
not an unjust detention” because when Harold was “faced with a difficult situation,
[he] did what he thought was appropriate in turning the matter over to the [c]ourt.”
{12} 	William then requested that a sanction be imposed against Mrs. Bernier,
pursuant to Rule 1-011, in the amount of the defense attorney fees. He also moved for

After these motions were filed, but prior to the court hearing them, Judge Hall
retired, and this case was reassigned to Judge Vigil.
7
costs pursuant to Rule 1-054.3 The district court entered judgment imposing the
sanction and awarding costs. 	Ronald caused an appeal from the district court’s
sanction and award of costs. This Court, in an unpublished memorandum opinion,
vacated the sanction award and remanded to the district court for the entry of findings
of fact and conclusions of law. 	See Bernier v. Bernier, No. 30,401, 2011 WL
2040702, at *1-2 (N.M. Ct. App. 2011). 	We instructed the district court to enter
findings regarding:
what subjective knowledge and specific conduct it intended to sanction;
whether, and if so in what manner, the initial filing of the litigation itself
was frivolous or brought in bad faith; why Plaintiff’s initial filing or
subsequent conduct offended Rule 1-011; whether the cost award was
part of the Rule 1-011 sanction; and why the amount of the sanction
assessed 	against 	Plaintiff 	herself 	was 	appropriate 	to 	redress 	the
objectionable behavior.
Id. at *2.
{13} 	On remand the parties filed requested findings of fact and conclusions of law.
All of the district court’s conclusions of law were adopted verbatim from those the
defense requested, and fifty-five of the sixty-one findings were adopted verbatim from
those requested by the defense. 	The court’s findings and conclusions will be
discussed, as pertinent, within the body of this Opinion. In sum, however, the district

8
court concluded that Ronald knew that the complaint against Harold should not have
been filed and that by deliberately pressing an unfounded claim, Ronald violated Rule
1-011. The court also clarified that its award of reasonable costs was pursuant to Rule
1-054.
{14} 	Ronald caused Mrs. Bernier to appeal from the district court’s findings of fact
and conclusions of law resulting in imposition of a sanction and award of costs against
Mrs. Bernier. Ronald argues that Mrs. Bernier cannot be held liable for his actions
because he was not her agent nor was he a party in the case. And he argues that it was
error to attempt to impose a sanction against him because he was not a party. Ronald
makes a number of other arguments in support of his contention that the court’s
imposition of a sanction constituted an abuse of discretion. And he argues that the
district court abused its discretion in awarding costs to William. We are not persuaded
by any of Ronald’s claims, and we affirm the district court.
DISCUSSION
Standard of Review
{15} 	We review a district court’s imposition of a Rule 1-011 sanction for an abuse
of discretion. 	Lowe v. Bloom, 112 N.M. 203, 204, 813 P.2d 480, 481 (1991). The
district court “is in the best position to view the factual circumstances surrounding an
alleged violation [of Rule 1-011] and must exercise sound judgment concerning the

The practice of full scale verbatim adoption of extensive requested findings
of fact and requested conclusions of law of the prevailing party, especially in complex
cases, can cause this Court on appeal to grant less deference to a court’s findings of
fact and conclusions of law than is otherwise accorded. 	Los Vigiles Land Grant v.
Rebar Haygood Ranch, LLC, 2013-NMCA-___, ¶ 2, ___ P.3d ___ (No. 31,325, filed
May 1, 2013) (stating that “[t]his Court looks askance at wholesale verbatim adoption
of the prevailing party’s extensive requested findings of fact and conclusions of law”
and also stating, “when appropriate, we will relax our usual deferential review”); see
also Pollock v. Ramirez, 117 N.M. 187, 192, 870 P.2d 149, 154 (Ct. App. 1994)
(stating that “the trial court is required to exercise independent judgment in arriving
at its decision and should generally avoid verbatim adoption of all of the findings and
conclusions submitted by a party”).
9
imposition of sanctions.” Rivera v. Brazos Lodge Corp., 111 N.M. 670, 675, 808 P.2d
955, 960 (1991). 	Although our standard of review is generally very deferential,
Rangel v. Save Mart, Inc., 2006-NMCA-120, ¶ 25, 140 N.M. 395, 142 P.3d 983, our
deference wanes when the district court adopts verbatim the prevailing party’s
extensive requested findings of fact and requested conclusions of law in complex
cases.4 Further, “a district court . . . abuse[s] its discretion if it base[s] its ruling on an
erroneous view of the law or on a clearly erroneous assessment of the evidence.”
Rivera, 111 N.M. at 675, 808 P.2d at 960. 	Our review of the district court’s
assessment of costs is also subject to an abuse of discretion standard. Apodaca v. AAA
Gas Co., 2003-NMCA-085, ¶ 103, 134 N.M. 77, 73 P.3d 215.

10
Appellant’s Agency Argument
{16} 	Ronald argues that the district court erred in sanctioning Mrs. Bernier for his
conduct. He argues that “[t]here was no demonstration in the proceedings or in the
record that Ronald . . . and Mrs. Bernier had an employee or agent relationship[] such
that she should be vicariously liable for his alleged actions.” Ronald does not state
where in the record he raised this argument. We therefore will not consider it. See
Crutchfield v. N.M. Dep’t of Taxation & Revenue, 2005-NMCA-022, ¶ 14, 137 N.M.
26, 106 P.3d 1273 (“[O]n appeal, the party must specifically point out where, in the
record, the party invoked the court’s ruling on the issue. Absent that citation to the
record or any obvious preservation, we will not consider the issue.”).
{17} 	Ronald also argues that, because he was not a party to the action, his actions
were not subject to Rule 1-011 sanctions. 	We observe that by Ronald’s own
admission, he was, at all times relevant to this case, acting pursuant to an Illinois
power of attorney. That document included, among other powers, the authority to
“institute, prosecute, defend, abandon, compromise, arbitrate, settle[,] and dispose of
any claim in favor of or against [Mrs. Bernier.]” It also expressly deemed Ronald to
be Mrs. Bernier’s “agent” with the authority to act for Mrs. Bernier and in her name
by virtue of his status as her “attorney-in-fact.” Ronald ratified the complaint “[a]s
Power of Attorney for [Mrs.] Bernier[,]” stating that he had read the complaint and

11
that he believed its contents to be “true and accurate to the best of [his] information,
knowledge[,] and belief.” No question was raised in the district court and none has
been raised on appeal as to Ronald’s authority to retain legal counsel and to
commence and prosecute the underlying lawsuit on behalf of Mrs. Bernier. Under
these circumstances, Ronald’s actions, including his signature verifying the truth and
accuracy of the complaint, had the same effect as if Mrs. Bernier had herself
commenced the action and had signed the document herself. See Smith v. Walcott, 85
N.M. 351, 356, 512 P.2d 679, 684 (1973) (explaining that where a husband signed an
answer to a complaint on behalf of himself and his wife, as her attorney, his signature
had the same effect as if she had personally signed). Moreover, because Ronald was
acting pursuant to Mrs. Bernier’s power of attorney, Mrs. Bernier was subject to direct
liability for Ronald’s wrongful conduct. See Restatement (Third) of Agency § 1.04(7)
(2006) (stating that “[a] power of attorney is an instrument that states an agent’s
authority”); id. cmt. g (“A power of attorney is a formal manifestation from principal
to agent, as well as to third parties with whom the agent interacts, that evidences the
agent’s appointment and the nature or extent of the agent’s authority.”); Restatement
(Third) of Agency § 7.03(1)(a)(i) (2006) (stating that “[a] principal is subject to direct
liability to a third party harmed by an agent’s conduct when . . . the agent acts with

12
actual authority . . . and . . . the agent’s conduct is tortious”). 	We therefore reject
Ronald’s argument that Mrs. Bernier could not be held liable for his actions.
Rule 1-011 Sanctions
{18} 	Pursuant to Rule 1-011, the district court assessed a sanction consisting of
William’s attorney fees in the amount of $56,575.44. Ronald argues that the district
court erred by failing to provide adequate evidentiary findings to support the
assessment. 	He also argues that, as a matter of policy, a party should not be
sanctioned unless the complaining party has, throughout the litigation, complained of
Rule 1-011 violations, and because the issue of sanctions was not raised until the end
of the case, the imposition of a sanction against Mrs. Bernier constituted a violation
of her due process and an abuse of the court’s discretion. Ronald also argues that the
district court’s decision to order a sanction in the amount of William’s attorney fees
conflicts with the “American Rule” and that the court erred in assessing a sanction
based on the fact that Mrs. Bernier did not prevail in her damages claim. 	And he
further argues that the district court abused its discretion or otherwise erred in
awarding a sanction for the entire case when Mrs. Bernier was the prevailing party in
the replevin claim. 	We begin our discussion with an overview of Rule 1-011,
followed by an examination of Ronald’s arguments.

13
{19} 	“The primary goal of Rule [1-011] is to deter baseless filings in district court.”
Rivera, 111 N.M. at 674, 808 P.2d at 959. Rule 1-011(A) provides, in pertinent part,
that
[t]he signature of an attorney or [a] party constitutes a certificate by the
signer that the signer has read the pleading, motion[,] or other paper; that
to the best of the signer’s knowledge, information[,] and belief there is
good ground to support it[.] . . . 	For a willful violation of this rule[,] an
attorney or [a] party may be subjected to appropriate disciplinary or
other action.
Although Rule 1-011 allows the district court to sanction either an attorney or a party,
“[s]anctions should be entered against an attorney rather than a party only when a
pleading or other paper is unsupported by existing law rather than unsupported by
facts.” Rivera, 111 N.M. at 675, 808 P.2d at 960.
{20} 	“Any [Rule 1-011] violation depends on what the . . . litigant knew and believed
at the relevant time and involves the question of whether the litigant . . . was aware
that a particular pleading should not have been brought.” Rivera, 111 N.M. at 675,
808 P.2d at 960. 	Here, the question is whether Ronald had a “good ground” for
initiating and continuing to prosecute the lawsuit. Cf. Rangel, 2006-NMCA-120, ¶ 11
(stating that “[t]he good ground provision is measured by a subjective standard and
is appropriate only in those rare cases in which an attorney deliberately presses an
unfounded claim or defense” (internal quotation marks and citation omitted)). “For
Rule 1-011 sanctions to be appropriate, there must be subjective evidence that a

14
willful violation has occurred.” Rangel, 2006-NMCA-120, ¶ 11 (internal quotation
marks and citation omitted).
{21} 	Upon the imposition of Rule 1-011 sanctions, the district court must enter
findings of fact that are supported by evidence in the record that indicate the basis for
the sanctions. Benavidez v. Benavidez, 2006-NMCA-138, ¶¶ 15-16, 140 N.M. 637,
145 P.3d 117. Generalized conclusions that the sanctioned party “acted in bad faith,
vexatiously, [or] wantonly[,]” for example, will not suffice. 	State ex rel. State
Highway & Transp. Dep’t v. Baca, 120 N.M. 1, 8, 896 P.2d 1148, 1155 (1995)
(internal quotation marks and citation omitted). Rather, Rule 1-011 sanctions “must
be supported by particularized findings of misconduct[.]” Id.
{22} 	We begin with Ronald’s argument that the district court abused its discretion
by assessing a sanction without providing adequate evidentiary findings to support the
assessment. As an initial matter, we observe that Ronald’s argument in regard to the
sufficiency of the court’s findings focuses on Mrs. Bernier’s actions rather than his
own. 	In that regard, Ronald argues that the record does not reflect Mrs. Bernier’s
subjective knowledge that filing the replevin action or “some [other] aspect of the
litigation of the replevin action was improper[.]” He also argues that neither Judge
Vigil nor Judge Hall found that Mrs. Bernier engaged in any wrongful litigation
tactics or that Mrs. Bernier filed a meritless action. To the extent that these arguments

15
depend on Ronald’s lack-of-agency argument, we are not persuaded. 	As we
concluded earlier in this Opinion, because Ronald was acting as Mrs. Bernier’s
attorney-in-fact, Mrs. Bernier was liable for Ronald’s wrongful actions. See Smith,
85 N.M. at 356, 512 P.2d at 684; Restatement (Third) of Agency § 1.04(7), cmt. g;
Restatement (Third) of Agency § 7.03(1)(a)(i).
{23} 	Moreover, as William points out in his answer brief, the district court entered
extensive findings, which were supported by evidence in the record, that demonstrated
that the lawsuit should not have been filed and should not have continued. 	And
Ronald does not attack specific findings pertaining to the wrongful nature of his
commencing and continuing to prosecute the underlying litigation. 	See Rule 12-
213(A)(4) NMRA (requiring the appellant to “set forth a specific attack on [disputed]
finding[s], or such finding[s] shall be deemed conclusive”). 	Therefore, Ronald’s
argument that the court assessed a sanction without providing adequate evidentiary
findings to support them provides no basis for reversal.
{24} 	We next examine Ronald’s policy-based argument that “where a party moving
for Rule 1-011 . . . sanctions at the end of the case has never previously complained
of the alleged [Rule 1-011 violations], a court abuses its discretion in awarding
sanctions[.]” 	We understand Ronald’s argument in this regard to be an attempt to
incorporate the “safe harbor” provision of Rule 11 of the Federal Rules of Civil

16
Procedure into the application, in this case, of Rule 1-011. 	See Fed. R. Civ. P.
11(c)(2) (providing twenty-one days in which a party may withdraw or correct a
challenged pleading or other paper to avoid the possible imposition of sanctions); see
also id. advisory committee’s note (1993 amends.) (explaining that under the 1993
amendments (b) and (c), “[g]iven the ‘safe harbor’ provisions . . . , a party cannot
delay serving its Rule 11 motion until conclusion of the case” and recognizing that the
twenty-one day period provided for in Rule 11(c)(2) constitutes the provision of a
“safe harbor”). Unlike its federal counterpart, however, Rule 1-011 prescribes no time
limit within which a party can file a motion for sanctions. Compare Fed. R. Civ. P.
11(c)(2), with Rule 1-011. Where a New Mexico Rule conflicts with a federal rule,
we will adhere to the dictates of the State rule. See Edington v. Alba, 74 N.M. 263,
265, 392 P.2d 675, 676 (1964) (declining to follow a Federal Rule of Civil Procedure
that was materially different from the applicable New Mexico rule); cf. Rivera, 111
N.M. at 673-74, 808 P.2d at 958-59 (explaining that Rule 1-011 differs from Rule 11,
thereby requiring a different inquiry into Rule 1-011 than would apply to its federal
counterpart). Thus, we see Ronald’s safe harbor-policy argument as unpersuasive.
{25} 	Nor are we persuaded by Ronald’s argument that due process considerations
required William to notify him, in advance of the conclusion of the case, of his
intention to move for Rule 1-011 sanctions. “Due process requires that the attorney

17
be given notice of the imposition of Rule [1-011] sanctions, may require specific
notice of the reasons for the imposition of sanctions, and mandates that the accused
be given an opportunity to respond.” Doña Ana Sav. & Loan Ass’n, F.A. v. Mitchell,
113 N.M. 576, 579, 829 P.2d 655, 658 (Ct. App. 1991). As this Court has previously
stated, “[t]he existence of Rule [1-011] gives notice of the . . . possibility of
sanctions.” Id. In this case, Ronald was given notice of William’s motions to award
attorney fees and other related documents, which included the requests for sanctions,
by delivery of copies thereof to Ronald’s counsel. And he responded to those motions
and related documents by filing responses to them. Additionally, Ronald’s counsel
orally objected to the attorney fees, and therefore the sanction, at a hearing before the
court. Because the record reflects that Mrs. Bernier, acting through Ronald, was given
notice and an opportunity to respond to the imposition of the sanction, we conclude
that she was not deprived of due process. Cf. Mitchell, 113 N.M. at 579, 829 P.2d at
658 (concluding that the attorney was 	afforded due process in the context of the
imposition of Rule 1-011 sanctions because he was given notice and an opportunity
to be heard). 	Moreover, Ronald has not demonstrated why or how his ability to
defend against William’s requests for the sanction of paying his attorney fees was
impaired by the timing of the requests and, therefore, he has not presented a basis for
reversal. See Kysar v. BP Am. Prod. Co., 2012-NMCA-036, ¶ 21, 273 P.3d 867 (“A

18
party must show prejudice before reversal is warranted.” (internal quotation marks and
citation omitted)).
{26} 	We next consider Ronald’s argument that the district court’s imposition of a
sanction in the amount of attorney fees conflicts with the “American Rule.” “New
Mexico adheres to the so-called American [R]ule that, absent statutory or other
authority, litigants are responsible for their own attorney[] fees.” 	N.M. Right to
Choose/NARAL v. Johnson, 1999-NMSC-028, ¶ 9, 127 N.M. 654, 986 P.2d 450
(internal quotation marks and citation omitted); see id. ¶¶ 12-13 (stating that the
policies underlying the American Rule are (1) to “promote[] equal access to the courts
for the resolution of bona fide disputes” and (2) to “preserve judicial resources”
(internal quotation marks and citations omitted)). Our Supreme Court has explained
that “[a]llowing an award of reasonable attorney fees to sanction bad faith conduct
pursuant to a court’s inherent powers is consistent with the policies underlying the
American [R]ule[, which] policies only require that the losing litigant should not be
discouraged from fairly prosecuting or defending a claim.” 	Id. ¶ 18 (internal
quotation marks and citation omitted). 	The American Rule expressly does not
“provide a shield to parties that unfairly prosecute or defend a claim by engaging in
bad faith conduct.” Id. Thus, consistent with the American Rule, a court may impose

19
sanctions, in the form of attorney fees. 	Id. 	Ronald’s argument to the contrary is
unavailing.
{27} 	Ronald also argues that “[t]he district court abused its discretion in finding that
Mrs. Bernier’s failure to prevail on the damages aspect of the case amounted to
sanctionable conduct for the entire case under Rule 1-011[.]” Ronald’s argument in
this regard references the district court’s Finding of Fact No. 60, which read as
follows:
Even though the court granted [Mrs. Bernier’s r]enewed [m]otion for
[s]ummary [j]udgment and returned the stock certificate to [her], it was
because the [c]ourt believed that the [c]ourt’s appointed Guardian Ad
Litem in the sequestered case before Judge Barbara Vigil could take care
of [Mrs. Bernier’s] interest. . . . Further, the [c]ourt did not find that
[Mrs. Bernier] prevailed on her claims of replevin and declaratory relief
but only stated that [she] was the rightful owner of the stock certificate
[and that the certificate] would be distributed in accordance with the
Guardian Ad Litem’s responsibility in the sequestered case.
We disagree with Ronald’s interpretation of the district court’s finding.
{28} 	Contrary to Ronald’s view, we do not interpret the district court’s Finding of
Fact No. 60 to indicate that the court imposed a sanction for the entire case based
upon Mrs. Bernier’s failure to prevail in the damages claim. 	Instead, we view the
finding simply as an acknowledgment by the district court that the conclusion
regarding rightful ownership of the stock certificate did not affect the propriety of
Ronald’s actions. Furthermore, the finding is one of many in support of the court’s

20
imposition of a sanction, and Ronald has not shown the sanction to be based on an
erroneous view of the law or based on an erroneous assessment of the evidence. See
Rangel, 2006-NMCA-120, ¶ 12 (providing that “a district court necessarily would
abuse its discretion if it based its ruling on an erroneous view of the law” (internal
quotation marks and citation omitted)); Rivera, 111 N.M. at 675, 808 P.2d at 960
(recognizing a district court’s abuse of discretion if its ruling was based “on a clearly
erroneous assessment of the evidence”). Accordingly, we are not persuaded that the
sanction constituted an abuse of discretion.
{29} 	Ronald’s remaining arguments as to the impropriety of the sanction award arise
from or relate to Ronald’s position that Mrs. Bernier was the prevailing party in the
replevin action. Ronald argues that the fact that Mrs. Bernier was determined to be
the rightful owner of the stock certificate constitutes prima facie evidence that there
existed good ground for the lawsuit. 	Additionally, Ronald argues that the district
court’s sanction in the amount of attorney fees that arose from motions upon which
Mrs. Bernier prevailed was unjustified and that she was deprived of an opportunity
to oppose those fees, which, Ronald claims, should have been deducted from the
award of attorney fees. As framework for our analysis of these arguments, we begin
with an examination of the law of replevin.

21
{30} 	NMSA 1978, Section 42-8-1 (1907) provides a right of action and the purpose
of the remedy in replevin. 	It reads, “[a]ny person having a right to the immediate
possession of any goods or chattels, wrongfully taken or wrongfully detained, may
bring an action of replevin for the recovery thereof and for damages sustained by
reason of the unjust caption or detention thereof.” Id. In Novak v. Dow, this Court
explained that “[r]eplevin . . . is a possessory action” and that “[t]he primary object
of which is [the] plaintiff’s right to the immediate possession of the property and,
secondarily the recovery of damages by the plaintiff for the unjust caption[] or
detention thereof.” 	82 N.M. 30, 34, 474 P.2d 712, 716 	(Ct. App. 1970) (internal
quotation marks and citation omitted). Thus, in a replevin action, the district court is
called upon to enter a judgment that determines “the right to the immediate possession
of the property[] and damages for its unlawful caption or detention.” 	Id. 	(internal
quotation marks and citation omitted).
{31} 	In this case, Ronald contends that Mrs. Bernier succeeded in the “primary
motive of her case—the return of her . . . stock [certificate] in the replevin action” and
that this constitutes “prima facie evidence that the case was properly brought as a
result of [Harold’s] refusal to return her certificate.” 	William disputes Ronald’s
assertion that Mrs. Bernier was the prevailing party. He contends that because the
district court dismissed all claims against him except the replevin claim and because

22
the court awarded zero damages for replevin based on its finding that Harold did not
wrongfully retain the stock certificate, Harold was actually the prevailing party in the
action. See Hedicke v. Gunville, 2003-NMCA-032, ¶ 27, 133 N.M. 335, 62 P.3d 1217
(holding that the prevailing party was the party who “successfully avoided an adverse
judgment on every claim”); see also Dunleavy v. Miller, 116 N.M. 353, 360, 862 P.2d
1212, 1219 (1993) (explaining that “the prevailing party is the party who wins the
lawsuit—that is, a plaintiff who recovers a judgment or a defendant who avoids an
adverse judgment”). Further, William argues that the matter of who prevailed in the
litigation has no bearing on the propriety of the sanctions award because Rule 1-011
does not limit the court’s discretion to award sanctions only to the losing party. See
Gonzales v. Surgidev Corp., 120 N.M. 151, 156, 899 P.2d 594, 599 (1995) (stating
that sanctions are “collateral to or separate from the decision on the merits”).
{32} 	First, on the record before us, we disagree with Ronald’s assertion that Mrs.
Bernier prevailed in her replevin claim. 	We note that, although the district court
ultimately found that Mrs. Bernier was the rightful owner of the stock certificate, the
question of its rightful possession was left to the resolution of the sequestered case.
Further, the court also found that Harold’s retention of the stock certificate was not
wrongful. 	Even assuming that, in general, a plaintiff who is deemed the rightful
owner of the property, but who fails to prove damages, might be said to have prevailed

23
in a replevin claim, we emphasize that Ronald failed to prove wrongful detention.
Insofar as wrongful detention is an inextricable element of replevin, Ronald’s failure
in that regard precludes a holding that Mrs. Bernier prevailed in this cause of action.
See § 42-8-1 (stating the following elements of replevin (1) the right to the immediate
possession of the property, and (2) wrongful taking or wrongful detention of that
property). Second, we note that the determination that Mrs. Bernier was the rightful
owner of the stock certificate did not solely resolve any aspect of the replevin claim.
It also resolved Harold’s interpleader counterclaim. 	Thus, the district court’s
allowance of the interpleader combined with the ruling that Mrs. Bernier was legally
entitled to possession of the stock certificate was equally as favorable to Harold as to
Mrs. Bernier.
{33} 	We also disagree with Ronald’s assertion that the fact that the stock certificate
was returned to Mrs. Bernier constitutes prima facie evidence that “good ground”
existed for the commencement and continued prosecution of the replevin action. To
reiterate, “the good ground requirement is a subjective standard that depends on what
the . . . litigant knew and believed at the relevant time and involves the question of
whether the litigant . . . was aware that a particular pleading should not have been
brought.” Benavidez, 2006-NMCA-138, ¶ 14 (internal quotation marks and citation
omitted). In support of his “good ground” argument, Ronald argues that Judge Hall,

24
before whom the replevin claim was tried, did not indicate that he thought the claim
was frivolous. Ronald also argues that “Judge Vigil, who did not preside over the trial
or the pre-trial proceedings, could properly have observed no subjective bad faith by
Mrs. Bernier” and that “[a] replevin action was required for the return of her stock”
because “[a]fter [Harold] failed and refused to return her property after due demand,
Mrs. Bernier had no reasonable expectation that it would be returned to her
voluntarily.” On these bases, Ronald argues that there was no reasonable basis for the
sanctions award. We disagree.
{34} 	Insofar as William’s requests for the sanction was raised exclusively before
Judge Vigil, we do not view Judge Hall’s silence on the matter of the propriety of the
lawsuit material to this issue. Moreover, to the extent that Ronald ascribes to Judge
Hall a view that the litigation was meritorious as support for his argument that the
sanction was unjust, the attribution does not work in Ronald’s favor. 	In regard to
Ronald’s actions, we again observe that at the conclusion of the damages trial, Judge
Hall commented, “My main conclusion is that Harold’s actions were not an unjust
detention.” Judge Hall explained that “you all put [Harold] in an almost impossible
situation” and that Harold’s decision to not relinquish the stock certificate “was not
at all contrary to right and justice [because] I think he was doing the best he could in
an impossible situation.” 	Judge Hall’s observation of Ronald’s participation in

25
creating the “impossible situation” comported with Judge Vigil’s findings in that
regard. And, we note that, the impossibility of Harold’s situation, to which Ronald
contributed by joining with Beverly in requesting that Harold hold the stock certificate
until they reached an agreement about its distribution, was one of the numerous bases
upon which the district court founded the Rule 1-011 sanction.
{35} 	Further, we are not persuaded by Ronald’s argument that because Judge Vigil
did not preside over the replevin proceedings, she was unable to discern whether the
litigation was brought in bad faith. Ronald’s argument in that regard is not supported
by authority, and it is contradicted by the record that demonstrates Judge Vigil
received extensive briefing on the underlying facts that supported William’s requests
for and Ronald’s opposition to a sanction, and also reflects that Judge Vigil held an
evidentiary hearing on the matter. See Charter Servs., Inc. v. Principal Mut. Life Ins.
Co., 117 N.M. 82, 87, 868 P.2d 1307, 1312 (Ct. App. 1994) (explaining that where
one judge retires and a successor judge is left to determine the matter of costs, the
proper procedure is for the successor judge to adduce evidence on the matter of costs
and enter findings in accordance therewith). Ronald has demonstrated no error in this
regard.
{36} 	Nor are we persuaded by Ronald’s general assertion that Mrs. Bernier
essentially had no choice but to bring the replevin action. 	Under our deferential

26
standard of review in this matter, cf. Rangel, 2006-NMCA-120, ¶ 25, it was incumbent
upon Ronald to clearly demonstrate that the district court erred. Ronald fails to meet
this burden in two respects. First, he does not develop an argument based on evidence
in the record that would support a conclusion that particular findings of fact by the
district court were premised on a “clearly erroneous assessment of the evidence.”
Rivera, 111 N.M. at 675, 808 P.2d at 960. And second, he fails to cite to evidence in
the record that supports his assertion that Mrs. Bernier felt that she had no option but
to bring the lawsuit.
{37} 	Ronald’s remaining arguments in regard to the propriety of the sanction relate
to the purpose and structure of Rule 1-011. Our Supreme Court has explained that
deterrence of baseless filings in the district court is the primary goal of Rule 1-011.
Rivera, 111 N.M. at 674, 808 P.2d at 959. Our Supreme Court has also noted that
“sanctions are intended to deter future litigation abuse, punish present litigation abuse,
[and] compensate victims of litigation abuse[.]” 	Id. 	Rule 1-011 is also intended to
compensate victims of ill-founded litigation for the expenditure of time and resources.
Rivera, 111 N.M. at 674, 808 P.2d at 959. In accordance with these principles, the
structure of the rule requires an inquiry into the subjective knowledge of the alleged
offender. See Rangel, 2006-NMCA-120, ¶ 11.

27
{38} 	Ronald argues that the amount of the sanction in this case is too severe because
it punishes conduct for which there existed good ground, and he further argues that
had Harold complied with early requests to return the stock certificate directly to Mrs.
Bernier, much of the litigation could have been avoided because the suit would have
been dismissed. As such, in Ronald’s view, the district court should have deducted
fees, including, particularly, the amount of fees incurred by Harold to oppose Mrs.
Bernier’s motion for summary judgment for the return of the stock certificate. Ronald
also contends that he had no “meaningful opportunity” to attack the underlying
support for those fees. We are not persuaded by Ronald’s arguments.
{39} 	The district court, having heard and reviewed all of the evidence and arguments
presented by the parties, found, in pertinent part, that
36. 	Ronald knew that there was an agreement between Beverly,
Harold[,] and himself allowing Harold to keep the stock certificate
for safe-keeping. 	Ronald knew that Harold never claimed
ownership, right to possession, nor a financial interest in the stock
certificate.
37. 	Ronald knew that had [his attorney] requested that Harold deliver
the stock certificate to a neutral third party so that its ownership
could be determined, Harold would have undoubtedly done so.
38. 	Ronald knew that there was a dispute between him and Beverly
regarding returning the stock certificate to [Mrs. Bernier]. Harold
also knew about this dispute when Ronald demanded Harold
return the stock certificate to [Mrs. Bernier]. Ronald knew that
Harold questioned his management of [Mrs. Bernier’s] asset and

28
that Ronald had not answered Harold’s questions to Harold’s
satisfaction.
39. 	Ronald knew that there was no credible evidence whatsoever that
[Mrs. Bernier] intended that protracted litigation against her
elderly brother-in-law be undertaken on her behalf.
40. 	Ronal[d] 	knew 	that 	the 	causes 	of 	actions 	alleged 	in 	the
[c]omplaint such as replevin . . . should not have been brought,
and despite Ronald’s subject knowledge of Harold’s decision to
keep the stock certificate, Ronald filed the [c]omplaint against
Harold.
41. 	Ronald knew that this case should have been dismissed and the
issue of the distribution of the stock certificate could have been
pursued in the guardianship case.
42. 	Instead, Ronald continued to pursue a claim against Harold even
though he knew that Harold’s health was deteriorating. . . .
43. 	After Harold passed away on April 26, 2009, Ronald insisted that
the case against Harold proceed even though Harold’s family was
still mourning. 	Therefore, Harold’s son, William, entered as a
substituted party on June 23, 2009.
44. 	This knowledge and the pattern of conduct specified in the above
were subject to the [c]ourt’s sanctions.
Ronald does not specifically attack the factual bases of any of the foregoing findings.
In accordance with its findings, the district court concluded, among other things, that
“Ronald’s lawsuit was frivolous from inception, burdening both Defendant and the
[c]ourt with a senseless attempt to impose liability upon Harold for his attempt to
comply with the agreements among him, Ronald[,] and Beverly.” The court explained

29
that “Ronald’s willful subjection of Harold to this frivolous action is precisely the
kind of activity Rule [1]-011 is designed to deter.” 	We agree. 	Under these
circumstances, we conclude that the district court’s imposition of the sanction in this
case comported with the purpose of Rule 1-011, and we hold that the district court did
not abuse its discretion in issuing the sanction.
{40} 	Finally, we reject Ronald’s argument that he was deprived of an adequate
opportunity to oppose the requested sanction. This argument is not supported by the
record, which reflects that in response to William’s requests for the sanction in the
amount of all the attorney fees incurred in defending the action, Ronald availed
himself of the opportunity to oppose the sanction. We will not consider this argument
further. 	See Muse v. Muse, 2009-NMCA-003, ¶ 51, 145 N.M. 451, 200 P.3d 104
(stating that assertions of counsel that are unsupported by the record provide no basis
for review). 	And, to the extent that Ronald contends that the court’s error was
“compounded” by including in its sanction the award of fees that occurred during the
sequestered case, Ronald’s citation to the billable hours of William’s attorneys,
without pointing to evidence in the record of what the charges represent or where in
the record his objection to those charges was preserved, we decline to consider his
contention. See Olguin v. Manning, 104 N.M. 791, 792, 727 P.2d 556, 557 (Ct. App.

30
1986) (“We will not review issues raised for which there are insufficient references
to the record or transcript[s] as required by the rules.”).
Rule 1-054 Costs
{41} 	“District courts have the discretion to grant a prevailing party the necessary and
reasonable costs incurred in litigating a case.” 	H-B-S P’ship v. Aircoa Hospitality
Servs., Inc., 2008-NMCA-013, ¶ 24, 143 N.M. 404, 176 P.3d 1136. “Costs generally
are recoverable only as allowed by statute, Supreme Court rule[,] and case law.” Id.
(internal quotation marks and citation omitted). 	“We therefore expect district courts
to exercise their discretion sparingly with regard to costs that are not specifically
authorized.” Id. And “[w]hen awarding . . . costs, the district court should explain the
circumstances justifying the award.” 	Id. (internal quotation marks and citation
omitted.”
{42} 	Rule 1-054(D)(2)(f) provides that costs associated with “witness mileage or
travel fare and per diem expenses, when the witness testifies at trial” are generally
recoverable as limited, in pertinent part, by NMSA 1978, Section 38-6-4(A) (1983).
Section 38-6-4(A) explains, in relevant part, that a witness “shall receive per diem
expense and mileage at the [current rate of up to ninety-five dollars per diem expenses
per day]” when the witness testifies at trial. 	See NMSA, § 10-8-4(A) (2009)
(providing the amount of allowable per diem reimbursement).

31
{43} 	The second amended cost bill represented: 	(1) witness travel expenses for
Beverly Kedzior, including an air fare, a rental car, and a hotel room, totaling $844.30;
(2) witness travel expenses for Beverly Bernier (Harold’s widow, William’s mother),
totaling $2,229.42; and (3) miscellaneous costs (for parking a motor home), totaling
$68.10. In awarding these costs, the district court found “that . . . Defendant’s [b]ill
of [c]osts is reasonable; the travel expenses and fares are reasonable; and that . . .
Defendant’s witnesses are entitled to recover such costs given the fact [that] they had
no choice but to travel to Santa Fe and defend the lawsuit.” The district court awarded
William’s costs pursuant to Rule 1-054 totaling $3,141.82.
{44} 	Ronald argues that the court abused its discretion by awarding these costs.
Alternatively, Ronald argues that the district court should have denied the cost bill
based on equitable principles—particularly whether Mrs. Bernier could afford to pay
the costs. We disagree.
{45} 	The district court’s award consisted of the actual travel costs of witnesses who
testified at trial, and thus, they were allowable pursuant to Rule 1-054(D)(2)(f). We
particularly note that the bulk of these costs reflect Beverly Bernier’s travel costs. The
record reflects that Ronald was afforded an opportunity to avoid the expense of
Beverly Bernier’s travel costs by granting defense counsel’s two requests that she be
permitted to testify by telephone owing to her age and her fear of flying. The result

32
of Ronald’s failure to grant that request was that Beverly Bernier had to be driven
from Florida to New Mexico by her son, William, in a motor home, thus incurring
travel costs in excess of $2,000. Under these circumstances, the district court did not
abuse its discretion in awarding William his costs.
{46} 	As to Ronald’s equity argument, although he asserts that Mrs. Bernier’s assets
were depleted by virtue of the events that occurred in this and in the sequestered case,
he fails to point us to evidence in the record to support this assertion. Accordingly,
we will not consider this argument further. 	See Santa Fe Exploration Co. v. Oil
Conservation Comm’n of N.M., 114 N.M. 103, 108, 835 P.2d 819, 824 (1992)
(explaining that when a party fails to cite any portion of the record to support its
factual allegations, the appellate court need not consider its argument on appeal).
Attorney Fees and Cost for This Appeal
{47} 	Relying on Landess v. Gardner Turf Grass, Inc., 2008-NMCA-159, 145 N.M.
372, 198 P.3d 871, William argued in his answer brief that he is entitled to recover
reasonable attorney fees and costs for work done on appeal. 	See Rule 12-403(A),
(B)(3) NMRA (stating that “[i]n all proceedings in the appellate court the party
prevailing shall recover the party’s costs unless otherwise provided by law, by these
rules, or unless the court shall otherwise determine” and stating that allowable costs
include that “reasonable attorney fees for services rendered on appeal in causes where

33
the award of attorney fees is permitted by law, if requested in the briefs”). Unlike
Landess, in which the defendants continued, on appeal, to assert the same frivolous
contentions that had comprised their case in the district court, Ronald’s appeal raised
a number of arguable, albeit unpersuasive, arguments that warranted this Court’s
thoughtful consideration. Landess, 2008-NMCA-159, ¶¶ 20-21. Accordingly, we see
no basis, in law or otherwise, to award William’s attorney fees on appeal. William’s
attorney conceded as much at oral argument. Therefore, we do not award William’s
attorney fees on appeal.
CONCLUSION
{48} 	We affirm the district court’s judgment.
{49} 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:
___________________________________
CYNTHIA A. FRY, Judge
___________________________________
M. MONICA ZAMORA, Judge