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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 ENRIQUE ROMERO and
3 ROSALIE ROMERO,
4 Plaintiffs-Appellants,
5 v. No. 32,551
6 ONEWEST BANK, FSB,
7 Defendant-Appellee.
8 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
9 John M. Paternoster, District Judge
10 New Mexico Legal Center, P.C.
11 Lee Boothby
12 Taos, NM
13 for Appellants
14 Cassutt, Hays & Friedman, P.A.
15 John P. Hays
16 Santa Fe, NM
17 for Appellee
18 MEMORANDUM OPINION
1 BUSTAMANTE, Judge.
2 {1} Enrique and Rosalie Romero (Plaintiffs) appeal from the district court’s order
3 dismissing their complaint [RP 513], and the order denying Plaintiff’s motion to
4 reconsider. [RP 555] Plaintiffs raise fourteen issues on appeal. [DS 6-13] This
5 Court’s calendar notice proposed summary affirmance. [Ct. App. File, CN1]
6 Plaintiffs have filed a memorandum in opposition, which, as discussed below, we have
7 duly considered. [Ct. App. File, MIO] Onewest Bank, FSB (Defendant) has filed a
8 memorandum in support. [Ct. App. File, MIS] Unpersuaded by Plaintiffs’
9 memorandum in opposition, we affirm.
10 Background
11 {2} In 2009, Defendant filed a foreclosure complaint against Plaintiffs in District
12 Court Case No. D-820-CV-298 (the 2009 case). Default judgment was entered
13 against Plaintiffs on September 9, 2009, and an order approving the sale was entered
14 on February 18, 2011. On April 26, 2011, Plaintiffs filed a motion to set aside the
15 default judgment in the 2009 case, and on May 12, 2011, Defendant filed a motion for
16 enforcement of the judgment. On May 29, 2013, the district court denied Plaintiffs’
17 motion to set aside the default judgment in the 2009 case. [MIS, pp. 1-2, Exhibit A].
18
2
1 {3} On May 12, 2011, Plaintiffs filed the complaint in this case. Plaintiffs allege
2 fraud and deceit, negligent misrepresentation, unfair trade practices, intentional
3 infliction of emotional distress; they requested that the district court set aside the
4 default judgment in the 2009 case; and they asked for declaratory relief (this case).
5 [RP 8] The district court ruled that, among other grounds, the claims brought in this
6 case are compulsory counterclaims that should have been brought in the 2009 case,
7 and it entered the order dismissing Plaintiffs’ complaint. [RP 439, 513] Plaintiffs
8 filed a motion to reconsider, Defendant responded, and the motion was denied. [RP
9 432, 504, 544, 552-53, 555] Plaintiffs appeal.
10 The Memorandum in Opposition
11 {4} In response to this Court’s calendar notice proposing summary affirmance,
12 Plaintiffs advance three arguments, contending that: (1) summary disposition violates
13 the New Mexico State Constitution; (2) a foreclosure action is an in rem proceeding
14 to which compulsory counterclaims cannot be a bar to subsequent claims; and (3) the
15 claims asserted in this case were not compulsory counterclaims. [MIO 3-10] We are
16 not persuaded.
17 1. Constitutionality of the summary calendar
18 {5} Plaintiffs contend that the summary calendar abrogates a claimant’s right to
19 appeal under the New Mexico Constitution, and that it violates due process, equal
3
1 protection, and the constitutional mandate requiring a quorum of three judges for the
2 “transaction of business” and a majority of three judges to concur in any “judgment
3 of the court.” [MIO 3-7] Existing New Mexico case law, however, has considered
4 and rejected each of these challenges to the constitutionality of the summary calendar.
5 See State v. Simpson, 1993-NMSC-073, ¶¶ 31-32, 116 N.M. 768, 867 P.2d 1150, State
6 v. Ibarra, 1993-NMCA-040, ¶¶ 3-12, 116 N.M. 486, 864 P.2d 302, cert. denied, 513
7 U.S. 1157 (1995); State v. Sheldon, 1990-NMCA-039, ¶ 5, 110 N.M. 28, 791 P.2d
8 479, cert. denied, 498 U.S. 969 (1990). We decline to revisit the well-settled
9 principles discussed in these authorities. Moreover, as we fully discussed in the
10 calendar notice, the procedural background of this case provides the legally operative,
11 undisputed facts relevant to its disposition; and the application of existing, dispositive
12 case law to these procedural background facts makes summary affirmance
13 appropriate. See, e.g., State v. Anaya, 1982-NMSC-073, ¶ 5, 98 N.M. 211, 647 P.2d
14 413 (recognizing that assignment to the summary calendar is proper in cases where
15 the application of legal principles to the facts involved is clear and where no genuine
16 issue of substantial evidence is involved).
17 2-3. A foreclosure action is an in rem proceeding to which compulsory
18 counterclaims cannot be a bar to subsequent claims, and the claims
19 asserted in this case were not compulsory counterclaims.
4
1 {6} Plaintiffs argue that the “opposing parties” and/or the “logical relationship”
2 tests are not met because Plaintiffs are raising in personam tort claims in this case that
3 do not have a common origin with Defendant’s in rem foreclosure contract claims
4 brought in the 2009 case. [MIO 9-12] That is, Plaintiffs argue that, since Defendant
5 brought only an in rem foreclosure action in the 2009 case, Plaintiffs’ in personam
6 claims sounding in tort brought in this case are not barred as compulsory
7 counterclaims of the 2009 case. [MIO 12-13] We disagree.
8 {7} It is well-established that “the mortgagee may sue either on the note or foreclose
9 on the mortgage, and may pursue all remedies at the same time or consequently. . . As
10 long as there is no double recovery on the debt, the mortgagee may pursue either or
11 both remedies.” Keppler v. Slade, 1995-NMSC-035, ¶ 7, 119 N.M. 802, 896 P.2d 482
12 (internal quotation marks and citations omitted). In the 2009 case, Defendant pursued
13 its remedies against Plaintiffs under the promissory note, an in personam claim, and
14 the mortgage, an in rem claim, and the district court’s default judgment awarded a
15 monetary judgment against Plaintiffs on the promissory note, an in personam remedy,
16 and the foreclosure of the mortgage on Plaintiffs’ real property, an in rem remedy.
17 [MIS, p. 4; RP 310-11] Hence, Plaintiffs’ contentions in the memorandum that
18 Defendant only pursued an in rem action in the 2009 case, and therefore Plaintiffs’ in
19 personam claims brought in this case are not barred as compulsory counterclaims in
5
1 the 2009 case, must fail. Similarly, Plaintiffs attempts to distinguish the authority we
2 relied on in the calendar notice as dispositive (we discuss this authority below) on the
3 basis that an in personam rather than in rem remedy was pursued in those cases, must
4 fail. [MIO 10] Finally, for the reasons fully discussed in the calendar notice and set
5 forth below, we remain persuaded that the “opposing parties” and the “logical
6 relationship” tests applicable to the compulsory counterclaim analysis have been met
7 in this case. [MIO 10-13]
8 The order dismissing Plaintiffs’ complaint
9 {8} In affirming the district court’s order dismissing the complaint, we rely on this
10 Court’s opinions in Adams v. Key, 2008-NMCA-135, 145 N.M. 52, 193 P.3d 599
11 (discussing and applying the compulsory counterclaim analysis pursuant to Rule 1-
12 013(A) NMRA), and Hefferen v. First Interstate Bank, 1983-NMCA-030, ¶¶ 18-20,
13 99 N.M. 531, 660 P.2d 621.
14 {9} As in Key, the issue before us is not whether Plaintiffs’ complaint is barred by
15 general principles of res judicata. 2008-NMCA-135, ¶ 15. Moreover, we note that
16 the salient issues on appeal do not involve the merits of the underlying claims brought
17 in this case, i.e., whether any alleged tortious conduct occurred. Similarly, the issues
18 we address are not about whether Plaintiffs’ allegations of fraud make Rule 1-
6
1 060(B)(6) NMRA applicable or would allow a collateral attack on the default
2 judgment of foreclosure in the 2009 case.
3 {10} Rather, the question before us is simply whether Plaintiffs’ complaint in this
4 case sets forth compulsory counterclaims that should have been made in response to
5 Defendant’s foreclosure complaint in the 2009 case between the parties. If Plaintiffs’
6 complaint sets forth compulsory counterclaims, those claims are barred by Rule
7 1-013(A) irrespective of res judicata and other principles. The failure of a party to
8 raise a compulsory counterclaim in a prior suit is fatal to bringing that claim in a
9 subsequent suit. Key, 2008-NMCA-135, ¶ 15. In Slide-A-Ride of Las Cruces, Inc.
10 v. Citizens Bank of Las Cruces, we held that compulsory counterclaims that were not
11 asserted and litigated in a prior action were deemed abandoned and could not be
12 asserted in a later action. 1987-NMSC-018, ¶ 14, 105 N.M. 433, 733 P.2d 1316.
13 {11} We now proceed to determine whether Rule 1-013(A) applies to bar the
14 complaint in this case, and we propose to hold that it does. Rule 1-013(A) provides:
15 A pleading shall state as a counterclaim any claim which at the time of
16 serving the pleading the pleader has against any opposing party, if it
17 arises out of the transaction or occurrence that is the subject matter of the
18 opposing party’s claim and does not require for its adjudication the
19 presence of third parties of whom the court cannot acquire jurisdiction.
20 As we discussed in Key, Rule 1-013(A) is triggered by its “opposing party” provision.
21 Key, 2008-NMCA-135, ¶ 17 (citing Computer One, Inc. v. Grisham & Lawless, P.A.,
7
1 2008-NMSC-038, ¶ 18, 144 N.M. 424, 188 P.3d 1175) (stating that there must be
2 parties that are “opposing” for a claim to be compulsory). In Computer One, Inc.,
3 our Supreme Court described an “opposing party” as follows: “An ‘opposing party’
4 must be one who asserts a claim against the prospective counterclaimant in the first
5 instance. In other words, “it is the adversarial nature of the relationship between the
6 parties from the beginning that . . . trigger[s] the compulsory counterclaim rule and
7 its attendant res judicata effect.” 2008-NMSC-038, ¶ 18 (internal quotation marks and
8 citation omitted). Opposing party status “fairly alerts litigants that all claims and
9 counterclaims ‘aris[ing] out of the transaction or occurrence’ must be brought at one
10 time under penalty of waiver.” Id. ¶ 24 (alteration in original).
11 {12} The second requirement of Rule 1-013(A) is that the claim “arises out of the
12 transaction or occurrence that is the subject matter of the opposing party’s claim.”
13 Key, 2008-NMCA-135, ¶ 18 (quoting rule 1-013(A)). We apply the “logical
14 relationship” test to determine whether the claims of a second lawsuit arise out of the
15 transaction or occurrence that is the subject matter of the first lawsuit. Id. ¶ 19 (citing
16 Heffern, 1983-NMCA-030, ¶ 16; see also Slide-A-Ride of Las Cruces, Inc., 1987-
17 NMSC-018, ¶ 10 (“In New Mexico, a transaction or occurrence is the same if a
18 ‘logical relationship’ exists between the opposing parties’ claims.”). “A logical
19 relationship will be found if both the claim and the counterclaim have a ‘common
8
1 origin’ and ‘common subject matter.’” Key, 2008-NMRA-135, ¶ 19 (quoting
2 Brunacini v. Kavanagh, 1993-NMRA-157, ¶ 21, 117 N.M. 122, 869 P.2d 821). The
3 Brunacini holding—that tort claims for legal malpractice are compulsory
4 counterclaims to a breach of contract claim—“makes it clear that the
5 logical-relationship test does not rest on the substantive law that governs the different
6 claims, but rather on whether the claims arise out of the same transaction or series of
7 transactions.” Id. ¶ 20; see also Heffern, 1983-NMCA-030, ¶ 20 (holding that a
8 logical relationship existed between a bank’s foreclosure action and the borrower’s
9 tort claims for conversion, wrongful hiring, unconscionable trade practices, and
10 intentional misconduct).
11 {13} In this case, the “opposing-party” requirement is satisfied. In its complaint
12 filed in 2009, Defendant sued Plaintiffs pursuant to a dispute between the parties. In
13 this case, Plaintiffs sued Defendant in 2011, pursuant to a dispute between the parties.
14 Thus, the parties’ relationship is adversarial in nature and creates “opposing parties”
15 within the meaning of Rule 1-013(A).
16 {14} Second, the claims asserted in the two actions are “logically related” because
17 they have a common origin (the loan agreement executed by the parties with
18 Plaintiffs’ obligation to repay the loan secured by the mortgage on the property
19 purchased with the loan proceeds) and a common subject matter (the parties
9
1 performance of, or the failure to perform, their obligations under the loan documents
2 and the various types of damages incurred as a result). Moreover, as discussed in
3 Computer One, Inc., the allegations in Defendant’s foreclosure action “fairly alerted”
4 Plaintiffs to the adversarial nature of Defendant’s claims under the loan documents
5 and concerning Defendant’s assertions of Plaintiffs’ breach thereunder.
6 2008-NMSC-038, ¶ 24. As such, any and all claims Plaintiffs had against Defendant
7 arising out of the parties’ disputes under the loan documents were Rule 1-013(A)
8 compulsory counterclaims to Defendant’s 2009 foreclosure action to be asserted in the
9 foreclosure law suit “under penalty of waiver.” See Computer One, Inc.,
10 2008-NMSC-038, ¶ 24. This included any and all claims logically related to the
11 parties’ dispute under the loan agreements sounding in tort or in contract.
12 {15} As in Key, the Rule 1-013(A) “penalty of waiver” applies even though Plaintiffs
13 filed no response to the 2009 foreclosure complaint and it ended in a default judgment
14 against them. Key, 2008-NMCA-135, ¶ 23 (citing Heffern, 1983-NMCA-030, ¶ 12).
15 Furthermore, because Rule 1-013(A) is applicable and “fatal” to all compulsory
16 counterclaims, Plaintiffs have “forever waived [their] right to adjudicate all of the
17 claims set forth in the [Plaintiffs’] complaint.” Key, 2008-NMCA-135, ¶ 23 (citing
18 Computer One, Inc., 2008-NMSC-038, ¶ 23) (stating that “a party’s failure to raise
19 compulsory counterclaims will be fatal to its subsequent lawsuit”); see also Heffern,
10
1 1983-NMCA-030, ¶ 11 (stating that “[u]nder [Rule 1-013(A)] failure to plead a
2 compulsory counterclaim bars a later action on that claim”). Plaintiffs defaulted in
3 the 2009 case. The claims brought in this case asserting Defendant’s tortious conduct
4 are compulsory counterclaims in the 2009 case because they are identical in origin and
5 subject matter, and they are logically related to and arise out of a common subject
6 matter, whether they sound in tort or in contract. “But-for” Plaintiffs’ failure to
7 respond to the 2009 case, all of these matters could have and should have been
8 litigated there. We hold that Rule 1-013(A) bars Plaintiffs’ complaint in this case.
9 Therefore, we affirm the district court’s order dismissing the complaint.
10 The order denying Plaintiffs’ motion to reconsider
11 {16} It is well-established that a district court has broad discretion in ruling upon a
12 motion for reconsideration and will only be reversed for an abuse of that discretion.
13 See GCM, Inc. v. Kentucky Cent. Life Ins. Co., 1997-NMSC-052, ¶ 28, 124 N.M. 186,
14 947 P.2d 143. “An abuse of discretion may be found only where the judge has acted
15 arbitrarily or unreasonably under the particular circumstances.” Id. (internal quotation
16 marks and citation omitted).
17 {17} In their motion for reconsideration, Plaintiffs continue to argue that they should
18 prevail on the merits of their complaint filed in this case essentially because
19 Defendant’s tortious conduct caused them damages aside from the sale of the property
11
1 in foreclosure. [RP 432, 544] In addition, Plaintiffs contend that their claims for
2 emotional distress, for example, and other damages due to Defendant’s alleged
3 tortious conduct, only arose and/or accrued after the 2009 foreclosure lawsuit was
4 filed. [Id.] Plaintiffs rely on language in Rule 1-013(A), stating that “[a] pleading
5 shall state as a counterclaim any claim which at the time of serving the pleading the
6 pleader has against any opposing party, . . .” (emphasis added). [Id.] Based on this
7 language, Plaintiffs contend that Rule 1-013(A) does not bar, as compulsory
8 counterclaims in the 2009 case, their tort claims for damages in this case. [Id.]
9 18} As discussed above, however, applicable law provides that the “logical
10 relationship” test under Rule 1-013(A), “does not rest on the substantive law that
11 governs the different claims, but rather on whether the claims arise out of the same
12 transaction or series of transactions.” Key, 2008-NMRA-135, ¶ 20. Moreover, all
13 of Plaintiffs’ claims and their alleged damages due to Defendant’s alleged tortious
14 conduct are logically related to, and arise out of, the same loan transaction among the
15 parties.
16 {19} Further, under the particular circumstances of this case, we are not inclined to
17 agree with Plaintiffs’ contention that their claims for damages are not compulsory
18 counterclaims because they arose or accrued after the 2009 foreclosure complaint was
19 filed. Plaintiffs had notice of the 2009 foreclosure action and yet chose not to
12
1 respond to it, resulting in a default judgment against them. They appear to have filed
2 this case in 2011 to undo or remedy their failure to defend in the 2009 case. This is
3 the type of case that Rule 1-013(A) was designed to prevent. See Slide-A-Ride of Las
4 Cruces, Inc., 1987-NMSC-018, ¶ 9 (recognizing that “[t]he purpose of Rule 1-013 is
5 to prevent multiplicity of actions and to achieve resolution in a single lawsuit of all
6 disputes arising out of common matters” and that “Rule 1-013 is particularly directed
7 against one who failed to assert a counterclaim in one action and then instituted a
8 second action in which that counterclaim became the basis of the complaint”).
9 Plaintiffs were required to engage in litigating their defenses and counterclaims to
10 Defendant’s 2009 suit for foreclosure, whether in tort or in contract, or forever waive
11 them. Had Plaintiffs engaged in litigating the 2009 case, they could have sought to
12 amend their answer containing defenses and counterclaims to foreclosure, as and
13 when new damages allegedly arose during the course of the 2009 case. The merits
14 of all of these defenses and counterclaims would have been reached and resolved.
15 And if Plaintiffs were dissatisfied with the results, they could have appealed the 2009
16 case to this Court. We can imagine that there may be instances where a second,
17 ”logically-related” suit is not barred because the claims arose long after the first suit
18 was finalized or settled, but this is not such a case.
13
1 {20} These are the principles of law articulated in the district court’s letter ruling and
2 order dismissing the complaint, and further articulated in the district court’s letter
3 ruling and order denying the motion to reconsider. [RP 439, 513, 552-54, 555] Under
4 the circumstances, therefore, we cannot say that the district court abused its discretion
5 in denying Plaintiffs’ motion to reconsider.
6 Conclusion
7 {21} We affirm the district court’s orders.
8 {22} IT IS SO ORDERED.
9
10 MICHAEL D. BUSTAMANTE, Judge
11 WE CONCUR:
12
13 JONATHAN B. SUTIN, Judge
14
15 M. MONICA ZAMORA, Judge
14