White v. Farris, 011121 NMCA, A-1-CA-37283

Docket NºA-1-CA-37283
Opinion JudgeZACHARY A. IVES, Judge.
Party NameJAY WHITE, Plaintiff-Appellee, v. JOSEPH FARRIS, JR., Defendant-Appellant.
AttorneyMason & Isaacson, P.A. James J. Mason Gallup, NM for Appellee. New Mexico Legal Aid Joel Jasperse Gallup, NM for Appellant.
Judge PanelWE CONCUR: J. MILES HANISEE, Chief Judge, MEGAN P. DUFFY, Judge.
Case DateJanuary 11, 2021
CourtCourt of Appeals of New Mexico

JAY WHITE, Plaintiff-Appellee,

v.

JOSEPH FARRIS, JR., Defendant-Appellant.

No. A-1-CA-37283

Court of Appeals of New Mexico

January 11, 2021

APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY Lyndy D. Bennett, District Judge.

Mason & Isaacson, P.A. James J. Mason Gallup, NM for Appellee.

New Mexico Legal Aid Joel Jasperse Gallup, NM for Appellant.

OPINION

ZACHARY A. IVES, Judge.

{¶1} Defendant Joseph Farris, Jr. appeals from a district court judgment, on de novo appeal, in favor of Plaintiff Jay White, affirming the magistrate court's writ of restitution and award of damages, past-due rent, and attorney fees. Defendant argues that the district court erred in (1) concluding that it had jurisdiction to decide Plaintiff's claims for possession and damages and jurisdiction over Defendant's person; (2) concluding that Plaintiff properly withheld Defendant's personal property for payment of rent and damages; and (3) awarding damages and attorney fees to Plaintiff. We affirm in part and reverse in part, holding that (1) the district court had subject matter jurisdiction over Plaintiff's claim for damages, Defendant's counterclaims, and Defendant's de novo appeal; (2) the magistrate court lacked personal jurisdiction over Defendant; and (3) the Uniform Owner-Resident Relations Act (UORRA), NMSA 1978, §§ 47-8-1 to -52 (1975, as amended through 2007), requires the owner of a rental property to return a resident's personal property upon demand and payment of reasonable storage fees if the resident demands its return within three days following the execution of a writ of restitution. We also vacate the district court's award of attorney fees and vacate in part its award of damages to Plaintiff.

BACKGROUND

{¶2} In August 2014, the parties entered into a contract (the lease option contract) pursuant to which Plaintiff "agree[d] to lease" and Defendant "agree[d] to rent" a residential property located in Vanderwagen, New Mexico, for sixty months. Under its terms, the contract was set to begin in September 2014, with Defendant to commence payments of $1, 000 per month in October 2014. The parties' agreement included an option to purchase that entitled Defendant to buy the residence and land on which it was situated for $116, 000 at any time during the contract's term, with all payments made prior to the date Defendant exercised the option to be applied toward the purchase price. In October 2014, Defendant paid Plaintiff $10, 000. The lease option contract made no mention of this payment, but Defendant testified at trial in the district court that it was made as an agreed-upon down payment toward the purchase price of the property. The property was in less-than-pristine condition when Defendant and his family moved in, and Defendant's trial testimony indicated that he invested time and expense in repairing it, including a week spent fixing the property's roof.

{¶3} Defendant did not pay the amounts due under the contract for September and October 2016 until November 2016, and he stopped making payments altogether beginning with the payment due for November. That month, a process server came to the property to deliver a three-day notice of nonpayment of rent. See generally § 47-8-33(D) (providing in pertinent part that, "[i]f rent is unpaid when due and the resident fails to pay rent within three days after written notice . . ., the owner may terminate the rental agreement and the resident shall immediately deliver possession of the dwelling unit"). The process server later testified that he spoke with an unidentified woman at the property and, after the woman refused to accept service, posted the notice on the gate to the property.

{¶4} Plaintiff filed a petition for restitution seeking possession of the property in magistrate court on December 9, 2016. The petition included a claim for damages consisting of $3, 000 in back rent, $33.33 in rent per day until Plaintiff regained possession, and further damages to be determined by the court, as well as costs and attorney fees. Plaintiff requested that the claims for possession and damages be tried separately. See generally § 47-8-42 (providing that a petition for restitution "may also contain other causes of action relating to the residency, but such causes of action shall be answered and tried separately, if requested by either party in writing"). On December 20, 2016, the magistrate court issued a summons directing Defendant to appear for trial on January 9, 2017. A return attested to by a private process server was filed on the day of trial. The return indicated that service of the summons had been effected by posting on January 6, 2017. The record does not contain any return showing that service was made by any other method. Defendant did not appear for the January 9, 2017 trial, and the magistrate court entered a default judgment for possession in Plaintiff's favor, scheduling a hearing on the issue of damages for the end of the month. In accordance with its judgment, the court issued a writ of restitution that directed the sheriff to restore Plaintiff to possession of the premises.

{¶5} The sheriff executed the writ on January 17, 2017. Defendant was given roughly forty-five minutes to remove personal property belonging to himself, his wife, and their five children from the premises. As a result, much of that property remained on the premises after Defendant was evicted, including, among other things, vehicles, a variety of electronics, furniture, kitchen appliances and accessories, toys, clothing, and tools.

{¶6} Defendant obtained counsel, and his attorney contacted Plaintiff's attorney on January 19, 2017, to request the return of Defendant's personal property. Invoking Section 47-8-34.1(C), Defendant's attorney asserted that the UORRA required Plaintiff to provide Defendant with "reasonable opportunities to come to the property and move out [his family's] personal belongings." See generally id. (providing, among other things, that "[w]here [a] rental agreement terminates by a writ of restitution, the owner shall have no obligation to store any personal property left on the premises after three days following execution of writ of restitution, unless otherwise agreed by the owner and resident"). Plaintiff's attorney responded that Plaintiff had placed the property in storage and would not return it until the damages hearing, indicating that, if the court allowed him to, Plaintiff intended to sell it to satisfy the past-due rent and pay for damage to the residential property caused during Defendant's occupancy.

{¶7} Without taking any action in the magistrate court proceeding, Defendant filed a notice of appeal in the district court on January 25, 2017. The next day, Defendant filed a motion asking the district court to declare that service in the magistrate court had been improper and order Plaintiff to return Defendant's personal property, either because of this deficiency or because Plaintiff's continued withholding of Defendant's personal property violated Section 47-8-34.1(C). Roughly one week later, Defendant filed another motion, this time requesting that the district court vacate the magistrate court judgment and dismiss Plaintiff's complaint. In both motions, Defendant asserted that service of process had been insufficient because it was by posting only and because trial had been held only three days after service was effected. See generally Rule 2-202(F)(1) NMRA (providing that, "[i]f the defendant is absent" and no other qualified person is "available or willing to accept delivery, then service may be made by posting such copies in the most public part of the defendant's premises, and by mailing to the defendant at his last known mailing address copies of the process"); § 47-8-43(A)(1) (providing that trial of an action for possession brought by the owner of a rental property "shall be set . . . not less than seven or more than ten days after the service of summons").

{¶8} The district court denied both motions. The court rejected Defendant's challenges to process and ruled that the UORRA did not require Plaintiff to release Defendant's personal property, "but only to hold [it] for three days." It nevertheless directed Plaintiff to "immediately return" "work related items," "clothing," and "other necessities for daily living[, ]" and instructed counsel for the parties to work in good faith to reach an agreement as to the items that fell into those categories.

{¶9} Defendant filed an answer in the district court proceeding after the court denied his motions. In his answer, Defendant admitted that he had breached the lease by failing to pay rent and that Plaintiff was entitled to possession of the premises. As defenses, Defendant renewed his challenge to the sufficiency of process, contested the magistrate court's subject matter jurisdiction over Plaintiff's claims, and contended that Plaintiff was not entitled to recover unpaid rent and damages because he had already regained possession of the property and retained all payments previously made, including the $10, 000 payment made at the beginning of Defendant's occupancy. Defendant again requested that the district court order Plaintiff to return his property, and he asserted a counterclaim for conversion in which he asked that the district court award him damages "to compensate . . . for Plaintiff's refusal to return Defendant's personal property, . . . the loss of use of his personal property, and . . . any deterioration in the value of his personal property resulting from Plaintiff's moving and storage[.]"

{¶10} Plaintiff answered Defendant's counterclaims, and the parties then filed cross-motions for summary judgment, with Defendant raising the same issues raised in his prior...

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