May 24, 2019- Emil Mottola v. Mr. and Mrs. Luis Martin, No. A-1-CA-36476

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	EMIL MOTTOLA and SHARON
3 	MOTTOLA,
4 	Plaintiffs-Appellants,
5 V. 	NO. A-1-CA-36476
6 	MR. and MRS. LUIS MARTIN d/b/a
7 MIRASOL SOLAR ENERGY SYSTEMS,
8 	Defendants-Appellees.
9 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
10 	Sarah M. Singleton, District Judge
11 	Emil Mottola
12 	Sharon Mottola
13 	Santa Fe, NM
14 Pro Se Appellants
15 	Kalm Law Firm P.C.
16 C. James Kalm
17 	Albuquerque, NM
18 	for Appellees
19
20 	HANISEE, Judge.
MEMORANDUM OPINION
21 	{t} 	Plaintiffs, filing prose, appeal from the district court's order denying their Rule
22 	1-060(B) NMRA motion. Unpersuaded that Plaintiffs' docketing statement addressed
23 	the appropriate district court rulings and established error, we issued a notice of
Court of Appeals of New Mexico
Filed 5/24/2019 9:52 AM

1 proposed summary disposition, proposing to affirm. Plaintiffs have responded to our
2 notice with a memorandum in opposition. Unpersuaded, we affirm.
3 	{2} 	In our notice, we stated that Plaintiffs' docketing statement was vague and
4 imprecise because Plaintiffs' arguments intertwined several matters that were already
5 before this Court in their previous appeal, No. A-l-CA-34915 , with new , some
6 unpreserved, complaints. We explained that Plaintiffs' imprecision in their arguments
7 was further complicated by their filing of successive post-judgment motions to
8 reconsider in district court, one of which was pending while this Court was resolving
9 the previous appeal. The district court's order denying Plaintiffs' third post-judgment
10 	motion-from which the present appeal arises-was entered over a year before we
11 	issued our memorandum opinion affirming on the merits in No. A-l-CA-34915 , in
12 	which we reversed a portion of the district court's previous cost judgment. We
13 	explained that although the district court did not have the benefit of our memorandum
14 	opinion when it entered an order denying Plaintiffs' Rule l-060(B) motion, the
15 	parties to the current appeal were aware of our previous opinion and nevertheless
16 	failed 	in their motions to this 	Court to 	adequately address the 	effect 	of our
17 memorandum opinion on the issues resolved by the district court order of April 20,
18 	2017. Plaintiffs' filings in this Court and in district court have been jumbled in both
19 content and procedure, preventing orderly, substantive review.
2

1 {3} 	In an effort to clarify matters, our notice attempted to narrow the appeal to its
2 proper proportions. We informed Plaintiffs that our previous opinion in A-1-CA-
3 34915 is law of the case, binding on the district court and all subsequent appeals, and
4 therefore any challenge to matters therein are not properly before us. See State ex rel.
5 King v. UU Bar Ranch Ltd. P'ship, 2009-NMSC-010, 1121-27, 145 N.M. 769,205
6 P.3d 816 (explaining the doctrine of law of the case). We further explained that the
7 only matter properly before us is whether the district court abused its discretion by
8 denying Plaintiffs' motion for relief from the cost judgment for the failure to
9 sufficiently demonstrate the elements of fraud under Rule l-060(B)(3) or a basis for
10 finding exceptional circumstances under Rule l-060(B)(6). [10 RP 2361-62]
11 	{4} 	Plaintiffs' response to our notice evinces a mistaken belief that all issues that
12 	were not specifically or fully addressed in the previous appeal are now properly
13 	before us. [MIO 1-5] Their response also shows a belief that Plaintiffs have revived
14 determined issues with arguments in opposition to our previous opinion and claims
15 	of fraud or misrepresentation that reach beyond the cost judgment. [MIO 2-18] These
16 beliefs are not grounded in any authority and are inconsistent with our instructions.
17 Plaintiffs' response again fails to supply this Court with a clear list of issues and a
18 	coherent and succinct statement of their arguments that were properly preserved in
19 district court, rejected by the district court's motion for relief from the cost judgment,
3

1 and not addressed in our previous opinion. We again review this appeal to the best
2 	of our ability and limit the appeal to those matters raised in the Rule 1-060(B) motion
3 for relief from the cost judgment. See Clayton v. Trotter, 1990-NMCA-078, ~ 12,110
4 N.M. 369, 796 P.2d 262 (stating that this Court will review prose arguments to the
5 best of its ability, but cannot respond to unintelligible arguments).
6 	{5} 	First, Plaintiffs' arguments arising under the UCC and the UPA [MIO 11-17]
7 involve matters conclusively resolved in Plaintiffs' previous appeal and were not the
8 subject of their motion for relief from the cost judgment. [9 RP 2232-47] These
9 matters, therefore, are not properly before us.
10 	{6} 	Second, we now understand that Plaintiffs' references to the post-judgment
11 	statements of opposing counsel-that form the basis for Plaintiffs' claims of newly
12 	discovered evidence of fraud or misrepresentations under Rule 1-060(B)(2}-are
13 	taken mostly from Defendants' filings in this Court in the previous appeal and from
14 Defendants' response to Plaintiffs' motion for relief from the cost judgment. [MIO
15 	6-11] In district court, Plaintiffs argued that these statements warrant relief from the
16 	underlying judgment, but raised this argument in their reply to Defendants' response
17 to Plaintiffs' motion for relief from the cost judgment. [9 RP 2289-2330] Plaintiffs'
18 	attempt to seek separate relief from a different judgment on new grounds in a reply
19 	brief did not appropriately present the matter and did not fairly invoke a ruling from
4

1 the district court. See, e.g., Rabo Agrifinance, Inc. v. Terra XXI, Ltd., 2014-NMCA-
2 	106,117,336 P.3d 972 (concluding that the district court did not abuse its discretion
3 in denying Rule 1-060(B) relief where an argument was made but the applicable
4 principle for relief from judgment was not identified, holding that the relief sought
5 was not properly presented to the district court and did not fairly invoke a ruling
6 therefrom); cf Jacob v. Spurlin, 1999-NMCA-049, 127, 127N.M. 127,978 P.2d 334
7 ("[T]he reply brief is not the place to raise new issues."). Indeed, the district court's
8 order denying Plaintiffs' motion for relief from the cost judgment does not appear to
-
9 recognize Plaintiffs' attempt to seek separate relief from a different judgment in their
10 reply brief. [10 RP 2360-62] To the extent that the district court's order could be
11 	construed to have denied the new grounds for relief in its order, however, we are not
12 	persuaded that it abused its discretion in doing so, 	in light of the 	improper
13 	presentation of the new grounds for relief from a different judgment.
14 	{7} 	Additionally, we are not persuaded that Plaintiffs accurately characterized
15 	Defendants' 	statements. 	[MIO 	6-11; 	RP 	2289-2330] 	Plaintiffs 	overstate 	the
16 	significance of the statements, take statements out of context, distort much of their
17 meaning, and ultimately do not adequately raise doubt about the fairness of the
18 proceedings in district court to warrant relief under Rule 1-060(B)(2).
5

1 {8} 	Third and lastly, we are not persuaded that Plaintiffs demonstrated the district
2 court abused its discretion in denying relief from the cost judgment on grounds of
3 fraud or misrepresentation under Rule 1-060(B)(3). [MIO 18-22] As stated in our
4 notice, some of the costs awarded to Defendants were reversed by this Court in the
5 previous appeal. Plaintiffs have not established entitlement to further relief as to these
6 costs. To the extent that Plaintiffs complain about the lack of verification of the costs,
7 this too was addressed in the previous appeal. Plaintiffs have not established new
8 grounds for fraud in the lack of verification or any other adequate basis for not having
9 raised those grounds in the first motion to reconsider in district court. [MIO 18-19]
IO 	See Rios v. Danuser Mach. Co., 1990-NMCA-031, ~ 25, 110 N.M. 87, 792 P.2d 419
11 	(explaining that repetitious post-judgment motions are not favored and requiring that
12 a successive post-judgment motion under Rule 1-060(B) must be supported by a
13 	"justifiable reason for not raising those grounds in the first motion").
14 	{9} 	To the extent that Plaintiffs challenge the district court's denial of relief from
15 	the cost judgment based on Defendants' allegedly intentional assertion of fraudulent
16 	charges, we are not persuaded. The district court rejected Plaintiffs' claim of fraud,
17 apparently ruling that improper charges or dates for charges were either inadvertent
18 	or otherwise did not rise to the level of fraud. [9 RP 2281-83, 10 RP 23 61] See Unser
19 	v. Unser, 1974-NMSC-063, ~ 26, 86 N.M. 648,526 P.2d 790 (holding that fraud and
6

1 misrepresentation under Rule 1-060(B)(3) must be shown with the same elements and
2 specificity as any ordinary action for fraud, requiring "a misrepresentation of a fact,
3 known to be untrue by the maker, and made with an intent to deceive and to induce
4 the other party to act upon it with the other party relying upon it to his injury or
5 detriment"). As we stated in our notice and in the previous appeal, it is the role of the
6 district court to assess credibility and culpability, and the district court in this case
7 had years of experience with the parties in course of this litigation and is afforded
8 wide discretion in assessing costs. See Varbel v. Sandia Auto Elec., 1999-NMCA-
9 	112, ~ 17, 128 N.M. 7, 988 P.2d 317 ("It is generally for the fact finder to determine
10 whether fraud was proved."); Martinez v. Martinez, 1997-NMCA-096, ~ 20, 123
11 	N.M. 816, 945 P.2d 1034 (observing that the district court has wide discretion in
12 	assessing costs based on the evidence and the equities). We are not persuaded that
13 	Plaintiffs' allegations of error in the cost bill or even their proven allegations of error
14 establish a fraud within the meaning of Rule 1-060(B)(3) and demonstrate an abuse
15 	of the district court's discretion. Additionally, Plaintiff has not referred to, and we are
16 	not aware of, any authority that would afford them relief from the entire cost bill
17 based on individual, erroneously charged costs.
18 	{10} 	It also appears that some of Plaintiffs' allegations of fraud are based on
19 Defendants' actions on appeal, when Defendants reasserted the entire cost bill and
7

1 requested the costs to be doubled. [MIO 20-21] Plaintiffs do not refer us to any
2 	authority that would afford them relief from the district court's cost bill based on
3 appellate court arguments, and we are not persuaded that such allegations can form
4 the basis for relief from a cost judgment in district court. See Chapel v. Nevitt, 2009-
5 NMCA-017, ,r 53 , 145 N.M. 674, 203 P.3d 889 (explaining that an appellant may not
6 raise issues in an appeal that were not raised by the pleadings in district court and not
7 resolved by the orders for which appellate review is sought).
8 	{11} 	For the reasons stated in our notice and in this opinion, we affirm the district
9 court' s order denying Plaintiffs' motion for relief from the cost judgment.
10 	{12} 	IT IS SO ORDERED.
11 	_:;_Jl__:· ~~-=----.;..~	- ~~~~~~
12 	J. MILES HANISEE, Judge
13 	WE CONCUR:
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15 	ELINE R. MEDINA, Judge
8