Mannick v. Wakeland, 24,078.

• Decision Date: 24 August 2004
• Docket Number: No. 24,078.,No. 24,280.,24,078.,24,280.
• Parties: Paul D. MANNICK and Kathy P. Mannick, Plaintiffs-Appellees, v. Robin G. WAKELAND, Defendant-Appellant. Coppler & Mannick, P.C., Paul D. Mannick, and Kathy P. Mannick, Plaintiffs-Appellees, v. Robin G. Wakeland, Defendant-Appellant.
• Court: New Mexico Supreme Court

117 P.3d 919

2005 NMCA 098

Paul D. MANNICK and Kathy P. Mannick, Plaintiffs-Appellees, v. Robin G. WAKELAND, Defendant-Appellant.

Coppler & Mannick, P.C., Paul D. Mannick, and Kathy P. Mannick, Plaintiffs-Appellees, v. Robin G. Wakeland, Defendant-Appellant.

No. 24,078.

No. 24,280.

Court of Appeals of New Mexico.

Certiorari Granted, No. 28,913, January 4, 2005.

August 24, 2004.

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Paul D. Mannick, Santa Fe, NM, for Appellees.

Robin G. Wakeland, Santa Fe, NM, Pro Se Appellant.

OPINION

PICKARD, Judge.

{1} This appeal involves two related cases: a foreclosure case, in which Paul and Kathy Mannick (the Mannicks) foreclosed on a judgment lien against Robin Wakeland's (Wakeland) property, and a waste case, in which the Mannicks and their successor in interest, Coppler & Mannick, P.C., sought to recover damages from Wakeland for actions she took to devalue the property that was the subject of the foreclosure case. The district court denied Wakeland's motion to enter judgment on an earlier mandate from this Court in the foreclosure case, in which she was awarded a $30,000 homestead exemption, until there had been a hearing in the pending waste case. Wakeland was found to have committed waste, and in addition to damages, the district court issued an order equitably estopping her from pursuing the homestead exemption to which she was legally entitled in the foreclosure case. We consolidate these cases on appeal to consider the issue of the district court's equitable powers, holding that while equitable estoppel was not applicable to this case, equity demands that the court supervise the payments so that Wakeland is required to at least partially satisfy the Mannicks' judgment against her.

{2} We also consider the other issues raised by Wakeland, which are (1) that this Court does not have the authority to consolidate the cases on appeal, (2) that the district court did not have a basis for finding that she had committed voluntary waste, (3) that the district court must have concluded that she committed prima facie tort and that the evidence did not support this conclusion, (4) that the court did not have the authority under the Uniform Fraudulent Transfer Act (the Act), NMSA 1978, §§ 56-10-14 to -25 (1989), to invalidate the Declaration of Covenants and Restrictions (the Declaration) that she filed or award damages in the form of attorney fees related to clearing title, (5) that she should win on appeal because Appellees have conceded certain issues, and (6) that she is entitled to costs on appeal. We affirm as to all of these issues, except as to a subissue relating to costs on a prior appeal, and we order each party to bear its own costs on this appeal.

FACTS AND PROCEDURAL HISTORY

{3} At the outset, we note that in order to describe the background of this case, we take judicial notice, as Wakeland requests, of the records on file in this Court. See State v. Turner, 81 N.M. 571, 576, 469 P.2d 720, 725 (Ct.App.1970). The parties also rely on these documents to lend clarity to their arguments. In addition, all of the records we notice were before the district court. See Gonzales v. Gonzales, 116 N.M. 838, 840-41, 867 P.2d 1220, 1222-23 (Ct.App.1993) (indicating that appellate court will consider on appeal matters that were before the district court when it ruled).

{4} The Mannicks foreclosed on a house owned by Wakeland in a case that came to this Court in 2001. We refer to this case as the foreclosure case. In our 2002 opinion in the foreclosure case, we affirmed the district court's decision in most respects, but we held that Wakeland was entitled to a $30,000 homestead exemption. Mannick v. Wakeland, No. 21,989, slip op. at 8-9 (N.M.Ct.App. Jan. 4, 2002).

{5} During the pendency of the foreclosure case, the Mannicks discovered that Wakeland had severely damaged the property that was the subject of the foreclosure and that its value had been considerably diminished. Among other things, Wakeland had covered the walls with graffiti, pounded large holes in the walls, and removed sinks, cabinets, water heaters, heaters, window cranks, lighting fixtures, and interior doors. Wakeland also filed the Declaration, which purported to be a covenant that permanently severed the domestic water rights from the property and kept them for herself and her descendants.

{6} In Wakeland's appeal of the foreclosure judgment, the Mannicks asked this Court to "determine whether and to what extent [Wakeland] ha[d] already received her homestead exemption" through this waste. Id. slip op. at 2. We refused, holding that "[a]ny separate claims [the Mannicks] wish to bring against [Wakeland] for property damages should be brought in the district court." Id. The Mannicks and Coppler & Mannick, P.C., the Mannicks' successor in interest to the property, then brought a claim for voluntary waste and fraudulent transfer of property against Wakeland on April 15, 2002. We refer to this case as the waste case.

{7} The district court, faced with both our mandate in the foreclosure case and the pending waste case, attempted to resolve any conflict by adding a paragraph to the judgment in the foreclosure case that read, "The Defendant Robin Wakeland is entitled to her homestead exemption, subject to the judgment of this Court in [the waste case]." Wakeland appealed this judgment, and we reversed, holding that such a set-off would be the equivalent of garnishing the exemption, which is not permitted under the homestead exemption statute. NMSA 1978, § 42-10-9 (1993); Mannick v. Wakeland, No. 23,517, slip op. at 5 (N.M.Ct.App. Jan. 28, 2003). In denying a subsequent motion for reconsideration by directly affected non-party Coppler & Mannick, P.C., we directed Coppler & Mannick to "bring its claims for waste and possibly obtain a judgment against Wakeland independent of the set-off that is the subject of this proceeding." Part of our rationale was that a judgment in the waste case was only a possibility. In addition, because the waste case had not yet been tried before the lower court, it was a collateral matter, not then part of the district court's records.

{8} Wakeland returned to the district court, and in March 2003, she requested a hearing for judgment on the mandate in the foreclosure case, with the goal of obtaining her homestead exemption. Meanwhile, the waste case was proceeding in the district court. Faced with the same situation as the previous district judge, the new district judge assigned to the case denied Wakeland's motion for a hearing, deciding that the matter of the judgment in the foreclosure case would be addressed at the April 2003 trial in the waste case. Wakeland appealed directly from this judgment, leading to the current appeal numbered 24,078, which is the continuation of the foreclosure case.

{9} The April 2003 trial in the waste case proceeded as planned. Paul Mannick testified as to the property damage and other attempts that Wakeland made to reduce the value of the property. Another witness testified about the work that he did on the property to repair the damage. Wakeland made various arguments but did not present testimony. The district court found that Wakeland had maliciously and wilfully destroyed the property and intended to violate the rights of the Mannicks and Coppler & Mannick. The court awarded the Mannicks and Coppler & Mannick $34,100 in actual damages and $10,000 in punitive damages. It also voided the Declaration.

{10} The district court also addressed the foreclosure case. Recognizing our mandate in the foreclosure case, the district court concluded that "under these particular and unusual circumstances, it would be unjust and inequitable to allow Ms. Wakeland to pursue any legal action against the [Mannicks] to recover the $30,000 homestead exemption and that ... Wakeland would be unjustly enriched by any such legal action." Accordingly, the district court decided that Wakeland would be "equitably estopped from pursuing the $30,000 to which she was legally entitled and that would, except for the extraordinary circumstances in this case, otherwise have been paid to ... Wakeland for her homestead exemption." Wakeland appealed from this order as well, leading to the current appeal numbered 24,280, which is the continuation of the waste case.

1. Consolidation on Appeal and Related Issues

{11} We consolidate these cases on appeal pursuant to Rule 12-202(F)(2) NMRA, which gives this Court the power to consolidate cases on its own motion. This power is independent of the district court's power to consolidate cases. Contrary to Wakeland's arguments, we do not recognize Rule 12-210(B)(3) NMRA as creating a substantive right to a panel of randomly chosen judges, and even if that right does exist generally, the consolidation of cases authorized by Rule 12-202(F)(2) would be an exception to it. Accordingly, we deny both of Wakeland's motions to vacate the notices of submission, showing that both cases were assigned to the same panel.

{12} Wakeland argues that this Court cannot consider facts proven in the waste case in its determination of the foreclosure case. We do not see any basis for this concern. As we discuss below, the sole issue on appeal of the foreclosure case is whether the judgment in the waste case can estop Wakeland from collecting the amount due to her. Therefore, we can use the factual record in the waste case to decide the propriety of that judgment, and we need only to consider legal principles in deciding whether the waste judgment can affect the foreclosure judgment. As is also clear from this discussion, the cases do have common issues that lend themselves to consolidation.

2. Waste

{13} Wakeland challenges the district court's conclusion that she committed voluntary waste, arguing that New Mexico does not recognize the tort of voluntary waste and that any claim of waste must be predicated on a joint tenancy or a contractual...