Varga v. Ferrell

• Decision Date: 23 October 2013
• Docket Number: 31,398.,31,337,31,268
• Citation: 362 P.3d 96
• Parties: Star VARGA, Plaintiff–Appellant/Cross–Appellee, v. Mark FERRELL, Gretchen Campbell, Desert Lakes Realty, LLC, and Does 4 Through 20, Inclusive, Defendants–Appellees/Cross–Appellants, and Susan Lowe, Defendant–Appellee.
• Court: Court of Appeals of New Mexico

362 P.3d 96

Star VARGA, Plaintiff–Appellant/Cross–Appellee,

v. Mark FERRELL, Gretchen Campbell, Desert Lakes Realty, LLC, and Does 4 Through 20, Inclusive, Defendants–Appellees/Cross–Appellants,andSusan Lowe, Defendant–Appellee.

31,268

31,337

31,398.

Court of Appeals of New Mexico.

Oct. 23, 2013.

Lee Deschamps, Socorro, NM, Susan Lea, Elephant Butte, NM, for Appellant/Cross–Appellee.

Law Offices of Stephen E. Hosford, P.C., Arrey, NM, for Mark Ferrell and Susan Lowe.

Sutin, Thayer & Browne, Susan M. Hapka, Albuquerque, NM, for Appellees/Cross–Appellants, Gretchen Campbell and Desert Lakes Realty, LLC.

MEMORANDUM OPINION

FRY, Judge.

{1} Plaintiff's motion for rehearing is denied. The memorandum opinion filed on October 2, 2013, has been withdrawn and this memorandum opinion is substituted in its place.

{2} This case arises from Plaintiff's purchase of a home in Elephant Butte, New Mexico. Plaintiff discovered construction defects after she took possession and sued the seller Mark Ferrell, the seller's broker Susan Lowe, and her own brokers, Gretchen Campbell and Desert Lake Realty, LLC (collectively, Campbell/DLR). On Plaintiff's appeal, we affirm summary judgment entered in favor of Campbell/DLR and Lowe. We reverse the district court's reduction of its award of punitive damages in favor of Plaintiff against Ferrell and remand for recalculation of that damages award. On Ferrell's cross-appeal, we affirm the district court's measure of damages awarded to Plaintiff to compensate her for Ferrell's misrepresentations.

BACKGROUND

{3} In this opinion, we address Plaintiff's appeal and Ferrell's cross-appeal. We address Campbell/DLR's cross-appeal in a formal opinion filed concurrently with this opinion. Because the parties are familiar with this case and because this is a memorandum opinion, we do not provide a summary of the factual and procedural background. We discuss the facts where relevant to the issues addressed in this opinion.

DISCUSSION

I. Plaintiff's Appeal

{4} Plaintiff makes three primary arguments in her appeal. She maintains that the district court: (1) erroneously granted Campbell/DLR and Lowe summary judgment and should have granted Plaintiff's motion for reconsideration; (2) erred in amending, sua sponte, the punitive damages award in Plaintiff's favor against Ferrell; and (3) erroneously awarded costs to Campbell/DLR. We address each in turn after first considering Campbell/DLR's and Lowe's contention that Plaintiff's notices of appeal were procedurally defective.

A. Plaintiff's Notices of Appeal Were Not Defective

{5} Campbell/DLR argue that we should not consider Plaintiff's challenge to summary judgment in their favor because, contrary to Rule 12–202(C) NMRA, she did not attach the order granting summary judgment to her notice of appeal. Lowe contends that Plaintiff failed to preserve her right to appeal summary judgment in Lowe's favor because she did not file an appeal within thirty days of the first order denying her motion for reconsideration of the summary judgment orders. We are not persuaded by either argument.

{6} Defendants' arguments regarding the notice of appeal require us to interpret court rules, which we review de novo. See Grygorwicz v. Trujillo, 2009–NMSC–009, ¶ 7, 145 N.M. 650, 203 P.3d 865. The sequence of events leading to Plaintiff's second amended notice of appeal is as follows. The district court heard Defendants' motions for summary judgment on December 29, 2010, and orally granted all of Campbell/DLR's and Lowe's motions. Before any orders were filed memorializing the district court's ruling, Plaintiff filed a motion for reconsideration on January 4, 2011, and an amended motion for reconsideration on January 5, 2011. On January 10, 2011, the district court entered its orders granting the summary judgment motions mentioned above and its order denying Plaintiff's amended motion for reconsideration.

{7} Plaintiff filed a third motion seeking reconsideration of all orders granting Defendants' motions for summary judgment on January 20, 2011. The district court heard this motion on March 23, 2011, and orally denied it. Before an order memorializing this ruling was filed, Plaintiff filed a notice of appeal on April 20, 2011, which stated that she was appealing from (1) the district court's order awarding costs to the DLR Defendants, and (2) "any [o]rder or [j]udgment made by the [c]ourt on March 23, 2011[,] denying Plaintiff['s] [m]otion for [r]econsideration of [c]ourt's [o]rders [g]ranting all [m]otions for [s]ummary [j]udgment filed by Defendants [Campbell, DLR, and Lowe]." She attached the first order to the notice of appeal. The district court filed the order denying Plaintiff's third motion for reconsideration on April 27, 2011, and Plaintiff filed an amended notice of appeal on May 3, 2011. In this notice of appeal, Plaintiff identified the orders she was appealing from in terms virtually identical to the terms used in her April 20 notice of appeal, except she stated that the order denying the motion for reconsideration was filed on April 27, 2011. She attached to this notice the district court's April 27 order denying her motion for reconsideration. Plaintiff filed a second amended notice of appeal in July 2011, which identified the same orders plus another order not relevant to this issue.

2. Campbell/DLR's Argument

{8} Campbell/DLR do not argue that Plaintiff's notice(s) of appeal were untimely filed. Rather, they argue that Plaintiff's notices of appeal did not attach the January 10 order granting Campbell/DLR's motions for summary judgment and that this failure violates Rule 12–202(C). Rule 12–202(C) requires an appellant to attach "[a] copy of the judgment or order appealed from." We disagree with Campbell/DLR's argument because our Supreme Court has established that "an appeal timely filed is not to be dismissed for technical violations of Rule 12–202 that do not affect the substantive rights of the parties." Govich v. N. Am. Sys., Inc., 1991–NMSC–061, ¶ 13, 112 N.M. 226, 814 P.2d 94. The purpose underlying Rule 12–202 is "vindicated if the intent to appeal a specific judgment fairly can be inferred from the notice of appeal and if the appellee is not prejudiced by any mistake." Govich, 1991–NMSC–061, ¶ 13, 112 N.M. 226, 814 P.2d 94.

{9} In the present case, although Plaintiff did not attach the January 10 order granting Campbell/DLR summary judgment, the order she did attach to her amended notice of appeal, which was the order denying her motion for reconsideration, mentioned the orders granting summary judgment. Indeed, there would have been no reason for a motion for reconsideration if summary judgment had not been granted. See id ¶ 14 (inferring intent to appeal from an earlier order when the later order specified in the notice of appeal referred to the earlier order); Nevarez v. State Armory Bd., 1972–NMSC–065, ¶¶ 9, 11, 84 N.M. 262, 502 P.2d 287 (concluding that notice of appeal was sufficient even though it did not mention the summary judgment being appealed because the judgment mentioned in the notice recited the entry of summary judgment). We can fairly infer that Plaintiff intended to appeal the order granting summary judgment to Campbell/DLR.

{10} Furthermore, Campbell/DLR have not argued that they were prejudiced by Plaintiff's failure to attach the January 10 order to her notices of appeal, and we see nothing in the record suggesting that this failure misled Campbell/DLR in any way. As a result, we will consider the merits of Plaintiff's arguments challenging the district court's order granting summary judgment to Campbell/DLR. See Govich, 1991–NMSC–061, ¶ 14, 112 N.M. 226, 814 P.2d 94 (inferring intent to appeal and noting that the record did not suggest that the appellee was misled by the appellant's failure to specify the judgment appealed from); Nevarez, 1972–NMSC–065, ¶ 11, 84 N.M. 262, 502 P.2d 287 (same).

3. Lowe's Argument

{11} Lowe argues that Plaintiff had to file a notice of appeal within thirty days from the district court's January 10, 2011, order denying Plaintiff's first motion for reconsideration. We disagree.

{12} Rule 12–201(D) NMRA provides that "[i]f a party timely files a motion pursuant to ... Rule 1–059 NMRA, the full time prescribed in this rule for the filing of the notice of appeal shall commence to run and be computed from either the entry of an order expressly disposing of the motion." Here, Plaintiff filed her first and second motions for reconsideration before the court had entered the orders granting Lowe summary judgment. "It is well established that an oral ruling by the trial court is not a final judgment, and that the trial court can change such ruling at any time before the entry of written judgment."

State v. Diaz, 1983–NMSC–090, ¶ 4, 100 N.M. 524, 673 P.2d 501. Thus, the district court's oral ruling in this case on December 29, 2010, was not a final order. When the district court ultimately entered its written orders on January 10, 2011, Plaintiff filed a timely motion for reconsideration of those orders ten days later. See Rule 1–059(E) (stating that a motion to alter or amend a judgment "shall be served not later than ten (10) days after entry of the judgment"). Thus, under Rule 12–201(D), the time for Plaintiff to file her notice of appeal did not begin to run until the district court filed its order denying this motion for reconsideration on April 27, 2011. Plaintiff filed her amended notice of appeal on May 3, 2011, and her appeal was therefore timely.

B. Summary Judgment in Favor of Campbell/DLR and Lowe Was Proper

{13} Campbell/DLR and Lowe argue that the district court properly granted them summary judgment because they submitted undisputed material facts in support of their motions and Plaintiff failed to respond as required by Rule 1–056(D)(2) NMRA. Therefore, they maintain, their undisputed material facts are deemed admitted. Plaintiff responds that (1) she filed a response to the motions that was compliant with Rule...