IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
Opinion Number: 2009-NMSC-009
Filing Date: February 24, 2009
Docket No. 30,939
TASHEENA GRYGORWICZ,
Plaintiff-Respondent,
v.
CHARLIE TRUJILLO,
Defendant-Petitioner.
ORIGINAL PROCEEDING ON CERTIORARI
Sam B. Sanchez, District Judge
Ray Twohig, P.C.
Ray Twohig
Albuquerque, NM
for Petitioner
Anthony J. Ayala, P.A.
Anthony James Ayala
Albuquerque, NM
for Respondent
OPINION
MAES, Justice.
{1} Defendant, Charlie Trujillo, appealed the denial of his claim for a homestead
exemption in a foreclosure action. Plaintiff, Tasheena Grygorwicz, initiated the foreclosure
action in partial satisfaction of a civil judgment she received for personal injuries resulting
from sexual abuse. See Grygorwicz v. Trujillo, 2006-NMCA-089, 140 N.M. 129, 140 P.3d
550, cert. denied, 2006-NMCERT-007, 140 N.M. 280, 142 P.3d 361. The Court of Appeals
held that Defendant had waived his right to the homestead exemption because he had failed
to appeal within thirty days from the district court’s decree of foreclosure. Grygorwicz v.
Trujillo, 2008-NMCA-040, ¶ 20, 143 N.M. 704, 181 P.3d 696. We hold that Defendant’s
appeal was timely under Rule 12-201(D) NMRA because Defendant’s motion for claim of
exemptions on execution, filed subsequent to the final foreclosure decree, tolled the time for
filing a notice of appeal, and Defendant properly appealed within thirty days from the
express denial of that motion. We further hold that there is no basis in the record to support
the district court’s denial of Defendant’s homestead exemption and, therefore, remand this
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case to the district court with instruction to grant Defendant’s claim for a homestead
exemption.
FACTS
{2} Following a bench trial, the district court found in Plaintiff’s favor on her sexual
abuse claim and awarded her $1.3 million in damages. See Grygorwicz, 2008-NMCA-040,
¶ 2. On August 7, 2006, Plaintiff filed a motion to foreclose on Defendant’s home in partial
satisfaction of the judgment debt. Id. ¶ 3. In response, Defendant asserted his right to a
homestead exemption under NMSA 1978, Section 39-4-15 (1933) and NMSA 1978, Section
42-10-9 (1993, prior to the 2007 amendment).
{3} The district court’s foreclosure decree, entered on November 30, 2006, granted
Plaintiff the property to either keep or sell in partial satisfaction of the judgment debt.
Grygorwicz, 2008-NMCA-040, ¶ 3. To protect the property from neglect or wear during the
pendency of the foreclosure, the district court also issued a writ of assistance to put Plaintiff
in possession of the property immediately. Id. ¶¶ 3-4. The decree of foreclosure omitted an
allowance for Defendant’s homestead exemption. Id. ¶ 4.
{4} The Taos County Sheriff executed the writ of assistance by locking Defendant and
his wife out of the house and putting Plaintiff in possession of the property. Id. On
December 4, 2006, Defendant filed a claim of exemptions on execution in the district court
pursuant to Rule 1-065.1 NMRA. Id. Defendant claimed that both he and his wife were
entitled to homestead exemptions. Id. Plaintiff argued that Defendant could not claim a
homestead exemption under Rule 1-065.1, which applies to writs of execution, when the
property had been seized under a writ of assistance. Id. The district court agreed and entered
an order dismissing Defendant’s claim of exemptions on execution with prejudice on
January 9, 2007. Id. Defendant filed a notice of appeal on January 19, 2007. Id.
{5} The Court of Appeals affirmed the district court’s order of dismissal. Id. ¶ 20. The
Court noted that Defendant properly had raised his homestead exemption in response to
Plaintiff’s motion for foreclosure, as required by Section 39-4-15. Id. ¶ 6. The Court further
concluded that the district court’s November 30 foreclosure decree was a final appealable
judgment, however, and that Defendant’s failure to appeal from this judgment within thirty
days, as prescribed by Rule 12-201(A)(2), constituted a waiver of his right to contest the
district court’s denial of the homestead exemption. Id. ¶ 15.
{6} Defendant argued that his subsequent claim for exemptions on execution under Rule
1-065.1 preserved his right to a homestead exemption. The Court of Appeals rejected this
argument, noting that Rule 1-065.1 is applicable only to writs of execution, not writs of
assistance. Grygorwicz, 2008-NMCA-040, ¶ 16. The Court concluded that the district court
properly denied Defendant’s request for a homestead exemption under Rule 1-065.1 because
“foreclosure, not execution, was the operative procedure, and Defendant did not timely
appeal from the district court’s foreclosure decree.”1 Id.
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The Court of Appeals did not consider whether the district court properly had denied
Mrs. Trujillo’s request for a homestead exemption, noting that “Mrs. Trujillo has not sought
to assert any claim in this appeal” and, therefore, her “rights are not before us.” Grygorwicz
, 2008-NMCA-040, ¶ 19. Neither Defendant nor Mrs. Trujillo petitioned for certiorari to
review the Court’s resolution of Mrs. Trujillo’s rights and, therefore, the issue is not before
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DISCUSSION
{7} The issue before us is whether the Court of Appeals erred by holding that Defendant
had “waived his homestead exemption claim by failing to pursue an appeal of the foreclosure
decree within the time frame required by Rule 12-201(A)(2) NMRA.” Id. ¶ 1. The New
Mexico Constitution, Article VI, Section 2, mandates that “an aggrieved party shall have an
absolute right to one appeal.” We have held that this constitutional provision “evinces the
strong policy in this state that courts should facilitate, rather than hinder, the right to one
appeal.” Govich v. N. Am. Sys., Inc., 112 N.M. 226, 230, 814 P.2d 94, 98 (1991).
Determining whether Defendant’s appeal was timely involves the interpretation of court
rules, which we review de novo. See Albuquerque Redi-Mix, Inc. v. Scottsdale Ins. Co.,
2007-NMSC-051, ¶ 6, 142 N.M. 527, 168 P.3d 99.
{8} We have held that the district court’s decree of foreclosure is both final and
interlocutory in its operation. The decree serves two functions: first, it determines the rights
of the parties in the property; and, second, it fixes the manner and terms of the foreclosure
sale. Speckner v. Riebold, 86 N.M. 275, 277, 523 P.2d 10, 12 (1974). Whereas, the court’s
judgment with respect to the manner and terms of sale is interlocutory, the declaration of the
parties’ rights may be construed as a final judgment unless modified under the provisions
of NMSA 1978, Section 39-1-1 (1917). Speckner, 86 N.M. at 277, 523 P.2d at 12
(discussing Section 21-9-1 in the 1953 statutory compilation, recompiled as NMSA 1978,
Section 39-1-1). Similarly, Rule 12-201(D) provides that if a party makes a post-judgment
motion directed at the final judgment pursuant to Section 39-1-1, the time for filing an
appeal does not begin to run until the district court enters an express disposition on that
motion. See Albuquerque Redi-Mix, Inc, 2007-NMSC-051, ¶ 15 (holding that our rules
eliminated Section 39-1-1’s automatic denial provision). Therefore, when a party makes a
motion challenging the district court’s determination of the rights of the parties contained
in the foreclosure decree, the decree is not final, and the time for filing an appeal does not
begin to run, until the district court disposes of the motion.
{9} Defendant properly asserted his homestead exemption in his answer to the
foreclosure action. Section 39-4-15 (“The defendant, if he desires to claim such real estate
or any part thereof as an exemption allowed by law, shall set up his claim of exemption by
answer in such foreclosure suit.”). We view Defendant’s claim of exemptions on execution
as Defendant’s best attempt to challenge the denial of his homestead exemption in the
foreclosure decree. This attempt was imperfect as it was presented as a claim of exemptions
on execution, rather than as a post-judgment motion challenging the foreclosure decree.
However, Section 39-1-1 retained jurisdiction in the court to hear and dispose of any motions
challenging the court’s determination on the rights of the parties in the decree, Defendant’s
continued and prompt assertion of his claim for homestead exemption shows an intention to
challenge the foreclosure decree in which the court excluded Defendant’s homestead claim.
Accordingly, we construe Defendant’s claim of exemptions on execution as a motion
challenging the foreclosure decree pursuant to Section 39-1-1. Because Defendant filed his
notice of appeal within ten days of the district court’s denial of his motion, Defendant’s
appeal was timely. See Rule 12-201(D).
The District Court Erred by Denying Defendant’s Claim for Homestead Exemption
this Court.
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{10} Having determined that Defendant’s appeal was timely, we next address the district
court’s denial of Defendant’s claimed exemption, which the Court of Appeals did not reach.
{11} The homestead exemption, Section 42-10-9 provides:
Each person shall have exempt a homestead in a
dwelling house and land occupied by him or in a dwelling
house occupied by him although the dwelling is on land
owned by another, provided that the dwelling is owned,
leased or being purchased by the person claiming the
exemption. Such a person has a homestead of thirty thousand
dollars ($30,000) exempt from attachment, execution or
foreclosure by a judgment creditor and from any proceeding
of receivers or trustees in insolvency proceedings and from
executors or administrators in probate. If the homestead is
owned jointly by two persons, each joint owner is entitled to
an exemption of thirty thousand dollars ($30,000).
We have held that the legislative purposes of the exemption is to benefit the debtor and to
“prevent families from becoming destitute as the result of misfortune through common debts
which generally are unforeseen.” Coppler & Mannick, P.C. v. Wakeland, 2005-NMSC-022,
¶ 9, 138 N.M. 108, 117 P.3d 914 (internal quotation marks and citation omitted). The statute
provides a homestead exemption as a matter of right and a court may not frustrate this
purpose by denying a properly asserted exemption for a qualifying homestead.
{12} In the present case, the district court’s denial of Defendant’s requested homestead
exemption is unsupported by the record. Plaintiff argued to the district court that the
homestead exemption should be denied due to the punitive nature of the underlying
judgment. However, we have held that a court may not deny the exemption on the basis of
tortious or malicious conduct. Id. ¶ 12 (holding that courts may only impose an equitable
lien against the homestead exemption under limited circumstances where malicious,
fraudulent, or intentional tortious conduct involves the homestead itself). Though an
allegation of waste may affect a debtor’s right to a homestead exemption, id. (“[T]he
judgment in the waste action . . . is not the type of debt the Legislature intended to shield.”),
the district court issued a writ of assistance putting Plaintiff in immediate possession of the
property in order to prevent the possibility of waste. The court’s issuance of the writ prior
to any allegation of waste, and Plaintiff’s failure to raise any such allegation, precludes any
argument on appeal that could challenge Defendant’s homestead exemption. Defendant
properly asserted his claim in answer to the foreclosure action, and there is no basis in the
record on which the district court could have properly denied Defendant’s assertion of his
homestead exemption. Therefore, we hold that Defendant is entitled to the homestead
exemption.
CONCLUSION
{13} Defendant’s appeal from the decree of foreclosure was timely. On the merits of the
appeal, we hold that the district court erred by denying Defendant’s right to a homestead
exemption. Therefore, we remand this case to the district court with instruction to grant
Defendant’s request for a homestead exemption.
{14} IT IS SO ORDERED.
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PETRA JIMENEZ MAES, Justice
WE CONCUR:
EDWARD L. CHÁVEZ, Chief Justice
PATRICIO M. SERNA, Justice
RICHARD C. BOSSON, Justice
CHARLES W. DANIELS, Justice
Topic Index for Grygorwicz v. Trujillo, No. 30,939
AE APPEAL AND ERROR
AE-AO Appealable Order
AE-AP Appellate Rules and Procedure
AE-TA Timeliness of Appeal
CP CIVIL PROCEDURE
CP-FO Final Order
JM JUDGMENT
JM-WE Writ of Execution
PR PROPERTY
PR-FC Foreclosure
PR-HE Homestead Exemption
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