October 23, 2019- Philip Edwin Treu v. Yaneth Esther Martinez Treu, No. A-1-CA-36326

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
PHILIP EDWIN TREU,	2
Petitioner-Appellee,	3
v. 	No. A-1-CA-36326	4
YANETH ESTHER MARTINEZ TREU,	5
Respondent-Appellant,	6
_______________________________________	7
AUGUSTINE RODRIGUEZ,	8
Attorney-Appellant.	9
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY	10
Sylvia Lamar, District Judge	11
Julie A. Wittenberger	12
Sam W. Minner	13
Santa Fe, NM	14
for Appellee	15
Augustine M. Rodriguez	16
Albuquerque, NM	17
for Appellants	18
MEMORANDUM OPINION	19
MEDINA, Judge.	20
Court of Appeals of New Mexico
Filed 10/23/2019 11:16 AM

2
{1} 	Augustine M. Rodriguez appeals the district court’s order imposing sanctions	1
upon him. Finding no abuse of discretion, we affirm. Because this is a memorandum	2
opinion, we set forth only such facts and law as are necessary to decide the merits.	3
BACKGROUND	4
{2} 	This appeal arises from Mr. Rodriguez’s representation of Yaneth Esther	5
Martinez Treu (Wife) in her divorce from Dr. Philip Edwin Treu (Husband).	6
Following the district court’s entry of the final decree of dissolution of marriage, Mr.	7
Rodriguez 	filed 	a 	motion 	requesting 	$19,417.51 	in 	attorney 	fees, 	which 	he	8
recognized was partially offset by $13,000 Wife removed from one of Husband’s	9
accounts. At the time, Wife had only paid Mr. Rodriguez $1,125 for his services.	10
The district court entered a written order awarding only a portion of the requested	11
attorney fees. Citing Mr. Rodriguez’s “lack of preparation for hearings and [t]rial,	12
his numerous late filings, his inappropriate filings[, and his] . . . failure to follow the	13
Rules of Civil Procedure and the Rules of Appellate Practice [in filing an	14
interlocutory appeal,]” the district court reduced his hourly rate. After striking some	15
time entries for various reasons, the district court found the total allowable costs and	16
attorney fees to be $12,218.63, which the district court ruled was entirely offset by	17
the $13,000 that Wife removed from Husband’s account. However, the district court	18
stated, “Mr. Rodriguez is strongly urged not to attempt collection from [Wife] of the	19
balance owing by [Wife] to Mr. Rodriguez.”	20

3
{3} 	Shortly after Mr. Rodriguez filed his motion for attorney fees—but before the	1
district court decided the motion—Husband filed a motion seeking $11,843.97 in	2
attorney fees as a Rule 1-011 NMRA sanction against Mr. Rodriguez. After holding	3
a hearing on the motion, the district court entered a written order awarding $4,500	4
in attorney fees to Husband pursuant to Rule 1-011, listing the following findings in	5
support of the sanction:	6
a. 	[Mr. Rodriguez’s] lack of preparation for hearings in this matter;	7
b. 	[Mr. Rodriguez’s] lack of preparation for the trial on the merits,	8
including but not limited to [Mr. Rodriguez’s] failure to present	9
a budget or address the other essential elements required for a	10
determination of spousal support, or to adequately prepare his	11
client to testify on the issue of spousal support, when this was a	12
critical issue at trial and a critical issue for [Wife;]	13
c. 	[Mr. Rodriguez] filed two emergency motions a month before	14
trial . . . . These filings required responses and were issues	15
properly 	before 	the 	[c]ourt 	at 	trial. 	The 	motions 	were	16
unnecessary and there was no basis for the filing of [one of the	17
motions;]	18
d. 	The Rules of Appellate Procedure were not followed. [Mr.	19
Rodriguez] filed a [n]otice of [i]nterlocutory [a]ppeal which the	20
Court of Appeals denied on April 12, 2016 and was received by	21
the [d]istrict [c]ourt on April 25, 2016 because [Mr. Rodriguez]	22
failed to certify the appeal as required by Rule 12-203 [NMRA;]	23
e. 	[Mr. Rodriguez] failed to comply with the deadlines contained in	24
the . . . [Rule 1-016(B) NMRA] [s]cheduling [o]rder including	25
but not limited to . . . [filing a preliminary witness list one day	26
after the deadline and filing an exhibit list almost two weeks after	27
the deadline;]	28

4
f. 	[Mr. Rodriguez], if he was unfamiliar with domestic relations	1
law or felt he was in over his head, had an obligation to seek	2
assistance from an attorney in his firm or another member of the	3
bar[; and]	4
g. 	[Mr. Rodriguez] had an obligation to counsel his client wisely	5
and he failed to do so as indicated in [his] confidential position	6
statement . . . which [Mr. Rodriguez] emailed instead to opposing	7
counsel . . . . On the issue of spousal support; [Mr. Rodriguez’s]	8
position 	was 	that 	$8,000 	per 	month 	spousal 	support 	was	9
appropriate without an adequate basis for that request.	10
This appeal followed.	11
DISCUSSION	12
Issues on Appeal	13
{4} 	As a preliminary matter, we must determine what issues are properly before	14
this Court. Mr. Rodriguez states that Wife “decided not to appeal” the district court’s	15
final decree of dissolution of marriage and does not allege that Wife changed her	16
mind. On appeal, Mr. Rodriguez’s primary argument is that the district court abused	17
its discretion in sanctioning him. However, due to Mr. Rodriguez’s confusingly	18
written brief, it is unclear if he is also attempting to argue an issue relating to the	19
underlying dissolution of marriage: that the district court erroneously classified	20
Husband’s retirement accounts under the parties’ prenuptial agreement. To the	21
extent Mr. Rodriguez attempts to have this Court examine issues relating solely to	22
Wife’s dissolution of marriage, this issue is not properly before our Court. We	23
explain.	24

5
{5} 	“It is settled in New Mexico that . . . only a party who has a real and substantial	1
interest in the subject matter before the court and who is aggrieved or prejudiced by	2
the decision of the trial court may appeal.” N.M. Cattle Growers’ Ass’n v. N.M.	3
Water Quality Control Comm’n, 2013-NMCA-046, ¶ 10, 299 P.3d 436. “To be	4
aggrieved, a party must have a personal or pecuniary interest or property right	5
adversely affected by the judgment. The party’s interest must be immediate,	6
pecuniary, and substantial, not nominal or a remote consequence of judgment.”	7
Moody v. Stribling, 1999-NMCA-094, ¶ 47, 985 P.2d 1210, 127 N.M. 630 (internal	8
quotation marks and citation omitted). Here, Mr. Rodriguez’s role was limited to	9
that of Wife’s attorney in the underlying controversy and he fails to explain how the	10
district court’s judgment regarding Husband’s retirement accounts affected his	11
“personal or pecuniary interest or property right[s].” Id. We will not do Mr.	12
Rodriguez’s work for him and decline to develop the substance of his argument or	13
“guess at what his argument might be.” Headley v. Morgan Mgmt. Corp., 2005-	14
NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076. Thus, we conclude Mr. Rodriguez	15
does not have standing to raise this issue.1
16
1 Mr. Rodriguez also argues that “[Wife] was prejudiced by the fact that she
was threatened by [Husband], such that she had to . . . forego appealing the decision
made by the [district] court as to the [retirement accounts].” However, even if these
allegations are true, Mr. Rodriguez fails to cite any authority for the proposition that
another party’s threats against his client grants him standing to appeal issues on his
client’s behalf without her approval. We, therefore, assume none exists. See In re

6
The District Court Did Not Abuse Its Discretion	1
{6} 	“A court may award attorney fees in order to vindicate its judicial authority	2
and compensate the prevailing party for expenses incurred as a result of frivolous or	3
vexatious litigation.” Landess v. Gardner Turf Grass, Inc., 2008-NMCA-159, ¶ 14,	4
145 N.M. 372, 198 P.3d 871 (alteration, internal quotation marks, and citation	5
omitted). Under Rule 1-011(A), an attorney’s signature on a court filing certifies	6
“that to the best of the signer’s knowledge, information, and belief there is good	7
ground to support it[,] and that it is not interposed for delay.” “A court may exercise	8
its discretion and impose sanctions for a willful violation of the rule when it finds,	9
for example, that a pleading or other paper signed by an attorney is not well grounded	10
in fact, is not warranted by existing law or a reasonable argument for its extension,	11
or is interposed for an improper purpose.” Rivera v. Brazos Lodge Corp., 1991-	12
NMSC-030, ¶ 13, 111 N.M. 670, 808 P.2d 955. Similarly, district courts have	13
“inherent power to impose a variety of sanctions on both litigants and attorneys in	14
order to regulate their docket, promote judicial efficiency, and deter frivolous	15
filings.” State ex rel. N.M. State Highway & Transp. Dep’t v. Baca, 1995-NMSC-	16
033, ¶ 11, 120 N.M. 1, 896 P.2d 1148 (internal quotation marks and citation	17
omitted). We review the imposition of sanctions for abuse of discretion. See	18
Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 (stating that when a party
fails to cite authority for an argument, we may assume none exists).

7
Landess, 2008-NMCA-159, ¶ 16. “Under this standard, we consider the full record	1
to determine whether the district court’s decision is without logic or reason, or	2
clearly unable to be defended.” Benavidez v. Benavidez, 2006-NMCA-138, ¶ 13, 140	3
N.M. 637, 145 P.3d 117.	4
{7} 	Mr. 	Rodriguez’s 	briefs 	raise 	several 	disjointed 	arguments 	against 	the	5
propriety of the district court’s sanctions, from which we discern two primary	6
contentions. We address each in turn.	7
{8} 	First, Mr. Rodriguez argues that Rule 1-011 sanctions were inappropriate	8
because he had a good faith basis for the two “emergency” motions that the district	9
court found were “unnecessary.” See Landess, 2008-NMCA-159, ¶ 16 (stating that	10
the standard for whether Rule 1-011 sanctions are appropriate is subjective and	11
“[a]ny violation depends on what the attorney or litigant knew and believed at the	12
relevant time and involves the question of whether the litigant or attorney was aware	13
that a particular pleading should not have been brought.” (internal quotation marks	14
and citation omitted)). However, we need not decide whether Mr. Rodriguez	15
subjectively brought the “emergency” motions in good faith because the district	16
court can sanction an attorney for conduct other than a violation of Rule 1-011. See	17
Freeman v. Fairchild, 2018-NMSC-023, ¶ 19, 416 P.3d 264 (“[I]f a party’s litigation	18
abuses fall outside the sanction authority expressly set forth in our procedural rules,	19

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the court may rely on its inherent powers to impose sanctions.” (internal quotation	1
marks and citation omitted)).	2
{9} 	While the district court stated that it was imposing sanctions pursuant to Rule	3
1-011, its findings indicate that it was additionally imposing sanctions for conduct	4
unrelated to the filing of documents under Rule 1-011. The district court listed	5
several reasons in support of its sanctions unrelated to Mr. Rodriguez’s filing of the	6
“emergency” motions, which included his lack of preparation for hearings and trial,	7
failure to adequately prepare Wife to testify, improper filing notice of notice of	8
interlocutory appeal, and failure to comply with the district court’s scheduling order.	9
Mr. Rodriguez does not argue that the district court could not impose the $4,500	10
sanction upon him under its inherent authority “to regulate [its] docket, promote	11
judicial efficiency, and deter frivolous filings.” 	Baca, 1995-NMSC-033, ¶ 11	12
(internal quotation marks and citation omitted). Nor does Mr. Rodriguez dispute the	13
district court’s findings.2 An unchallenged finding is binding on appeal. See Robey	14
2 Mr. Rodriguez, for the first time in his reply brief, attempts to attack the
evidence supporting these findings by referencing his memorandum in opposition to
our proposed summary disposition. Generally, we do not address issues raised for
the first time in a reply brief. See Mitchell-Carr v. McLendon, 1999-NMSC-025,
¶ 29, 127 N.M. 282, 980 P.2d 65. Nor will we consider arguments that the parties do
not develop in their briefs. See Headley, 2005-NMCA-045, ¶ 15. Even if we did
consider Mr. Rodriguez’s arguments contained in his memorandum in opposition,
they are largely unsupported by citations to the record or legal authority. See Rule
12-318 NMRA (requiring briefing to provide citations to relevant authorities as well
as to the record proper). Therefore, we decline to address these arguments.

9
v. Parnell, 2017-NMCA-038, ¶ 22, 392 P.3d 642 (“An unchallenged finding of the	1
trial court is binding on appeal.” (internal quotation marks and citation omitted).	2
Accordingly, we cannot say that the district court abused its discretion in sanctioning	3
Mr. Rodriguez. See State v. Linares, 2017-NMSC-014, ¶ 24, 393 P.3d 691 (“Where	4
an abuse of discretion is claimed by appellant, appellant bears a heavy burden, in	5
view of the long-standing rule that the reviewing court will not overturn the action	6
of the trial court absent a patent abuse of manifest error in the exercise of discretion.”	7
(internal quotation marks and citation omitted)); State v. Vargas, 2008-NMSC-019,	8
¶ 8, 143 N.M. 692, 181 P.3d 684 (“Under the ‘right for any reason’ doctrine, we may	9
affirm the district court’s order on grounds not relied upon by the district court if	10
those grounds do not require us to look beyond the factual allegations that were	11
raised and considered below.” (internal quotation marks and citation omitted)).	12
{10} 	Next, Mr. Rodriguez contends that the district court impermissibly sanctioned	13
him twice for the same conduct when it (1) reduced his attorney fees and discouraged	14
him from collecting fees from Wife and (2) ordered him to pay $4,500 for Husband’s	15
attorney fees. We note that Mr. Rodriguez has failed to cite any authority for the	16
proposition that a district court cannot impose multiple sanctions for the same	17
conduct. See Hall v. Hall, 1992-NMCA-097, ¶ 28, 114 N.M. 378, 838 P.2d 995	18
(“When parties fail to cite authorities in support of their contentions, we are entitled	19
to assume that they could not find support after diligent search.”). However, even	20

10
assuming, arguendo, that a district court cannot sanction an attorney twice for the	1
same conduct, we are not convinced that is the case here.	2
{11} 	Before the district court issued its first order reducing Mr. Rodriguez’s	3
attorney fees, Husband requested $11,843.97 in attorney fees as a sanction against	4
Mr. Rodriguez. However, in its order granting the $4,500 sanction, the district court	5
stated, “The amount is less than what was requested by [Husband] in light of the	6
[c]ourt’s prior sanction against [Mr. Rodriguez] not to seek prior fees from [Wife].”	7
Thus, the district court took care not to impose duplicative sanctions on Mr.	8
Rodriguez. Moreover, while Mr. Rodriguez focuses on the fact that both orders list	9
several of the same sanctionable actions, he fails to recognize that the district court	10
based its sanction on more than the reasons it listed in its first order reducing his	11
attorney fees. Specifically, the district court additionally found that: (1) Mr.	12
Rodriguez’s failed to seek assistance from another attorney familiar with domestic	13
relations law and (2) Mr. Rodriguez failed to offer his client wise counsel during	14
negotiations by emailing his confidential position statement to opposing counsel and	15
arguing a position on spousal support without an adequate basis. Mr. Rodriguez does	16
not address why these independent factual findings relied on by the district court	17
were insufficient to warrant sanctions, and therefore, we decline to address this	18
argument any further. See Farmers, Inc. v. Dal Mach. & Fabricating, Inc., 1990-	19
NMSC-100, ¶ 8, 111 N.M. 6, 800 P.2d 1063 (stating that we presume correctness on	20

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appeal, and the appellant must clearly and affirmatively demonstrate district court	1
error).	2
Costs and Attorney Fees on Appeal	3
{12} 	Relying on Landess, Husband argues that we should award him his costs and	4
attorney fees incurred in defending against Mr. Rodriguez’s “frivolous” appeal. See	5
2008-NMCA-159, ¶ 21 (exercising inherent authority to award attorney fees as	6
sanction for frivolous appeal); see also Rule 12-403(A), (B)(3) NMRA (permitting	7
appellate courts the discretion to award costs to the prevailing party, which may	8
include “reasonable attorney fees for services rendered on appeal in causes where	9
the award of attorney fees is permitted by law”). Specifically, Husband claims that	10
Mr. Rodriguez presented numerous arguments that are irrelevant to his appeal,	11
misconstrued or ignored facts, and attempted to deceptively twist unrelated case law	12
to his advantage. While we agree that Mr. Rodriguez’s briefing leaves much to be	13
desired, we are not convinced this appeal rises to the level of frivolousness found in	14
Landess, where the appellants continued to make “patently meritless” arguments	15
attacking the validity of “well-established federal tax laws.” 2008-NMCA-159,	16
¶¶ 17, 21. Nor are we convinced that Mr. Rodriguez’s treatment of facts and case	17
law is the result of bad faith rather than simple carelessness. Therefore, we decline	18
to exercise our discretion to award Husband attorney fees incurred on appeal. See	19
Bernier v. Bernier ex rel. Bernier, 2013-NMCA-074, ¶ 47, 305 P.3d 978 (declining	20

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to award attorney fees on appeal when the appellant “raised a number of arguable,	1
albeit unpersuasive, arguments”).	2
CONCLUSION	3
{13} 	For the foregoing reasons, we affirm the district court’s sanction.	4
{14} 	IT IS SO ORDERED.	5
_________________________________	6
JACQUELINE R. MEDINA, Judge	7
WE CONCUR:	8
_________________________________	9
M. MONICA ZAMORA, Judge	10
_________________________________	11
JULIE J. VARGAS, Judge	12