D Derringer v. J Moore

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 DAVID DERRINGER, 3 Plaintiff-Appellant, 4 v. NO. 29,135 5 JAYME MOORE, and 6 TUMBLEWEED AUCTION CO., 7 Defendants-Appellees. 8 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 9 Nan Nash, District Judge 10 David Derringer 11 Albuquerque, NM 12 Pro Se Appellant 13 Thomas Briones 14 Albuquerque, NM 15 for Appellees 16 MEMORANDUM OPINION 17 KENNEDY, Judge. 18 Plaintiff is appealing, pro se, from a district court judgment entered after an on- 19 the-record appeal from metropolitan court. We issued a calendar notice proposing to 20 affirm. Plaintiff has responded with a memorandum in opposition. We affirm. 21 In this case, Plaintiff is appealing, pro se, from a district court judgment entered 1 after an on-the-record appeal from metropolitan court. The district court dismissed 2 Plaintiff’s appeal based on the lack of an adequate record. [RP 359] The district court 3 noted that neither party requested that the trial in the metropolitan court be recorded. 4 See NMSA 1978, § 34-8A-6(B) (“The metropolitan court is a court of record for civil 5 actions.”); Rule 1-073(A) NMRA (“Appeal from metropolitan court on the record.”); 6 Rule 3-708(A) NMRA (“Every civil proceeding in the metropolitan court shall be tape 7 recorded if requested by a party.”). Plaintiff did not preserve a record in this case, 8 despite being informed by the metropolitan court that “[i]f you do not ask for a tape 9 recording, you will not have a record of the proceedings to take to the district court 10 for any appeal.” [RP 39] 11 Notwithstanding Plaintiff’s continued attempts to attack the merits of the 12 metropolitan court trial, we agree with the district court that the failure to preserve a 13 record of the metropolitan court trial effectively makes this appeal unreviewable for 14 all claims arising out of that proceeding. It is the duty of the appellant to provide a 15 record adequate to review the issues on appeal. Dillard v. Dillard, 104 N.M. 763, 16 765, 727 P.2d 71, 73 (Ct. App. 1986). “Upon a doubtful or deficient record, every 17 presumption is indulged in favor of the correctness and regularity of the trial court's 18 decision, and the appellate court will indulge in reasonable presumptions in support 19 of the order entered.” Reeves v. Wimberly, 107 N.M. 231, 236, 755 P.2d 75, 80 (Ct. 20 App. 1988). 2 1 As we interpret Plaintiff’s issues on appeal, this means that we are unable to 2 address issues 3-9 [DS 6-13; MIO 1-4], which go to the merits of trial proceedings. 3 With respect to Plaintiff’s continued contention that the metropolitan court cannot 4 serve as the highest court over this litigation [MIO 4-5], our calendar notice observed 5 that two appeals have been taken by Plaintiff. The fact that Plaintiff has not prevailed 6 on his appeals does not mean that he was deprived of any process that was due, and 7 his argument that we should independently consider the merits of his case is answered 8 by the lack of any record to review. The fact that Plaintiff has acted pro se [MIO 3] 9 in this case does not mean that he should be afforded special protection, or that we 10 should set aside rules governing appellate review. See Bruce v. Lester, 1999-NMCA- 11 051, ¶ 4, 127 N.M. 301, 980 P.2d 84. With respect to the claim that a court may not 12 award attorney fees in a contract action [DS 5], this issue is without merit because 13 the metropolitan court specifically awarded no attorney fees. [RP 6] For the reasons 14 set forth above, we affirm. 15 IT IS SO ORDERED. 16 ___________________________________ 17 RODERICK T. KENNEDY, Judge 18 WE CONCUR: 3 1 __________________________________ 2 MICHAEL D. BUSTAMANTE, Judge 3 __________________________________ 4 LINDA M. VANZI, Judge 4