 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
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 6   IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 7 LUIS ARTURO MORFIN,

 8          Plaintiff-Appellee,

 9 v.                                                                           NO. 30,782

10 JESUS F. VILLALOBOS,
11 Individually,

12          Defendant-Appellant,

13 and

14 ARACELY VILLALOBOS,
15 Individually, and FRANK’S
16 OILFIELD SERVICE, INC.,

17          Defendants.


18 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
19 William C. Birdsall, District Judge

20 John F. Dietz
21 New York, NY

22 for Appellee

23 Emeterio Rudolfo
24 Farmington, NM

25 for Appellant
2
 1                            MEMORANDUM OPINION

 2 VIGIL, Judge.

 3        Defendant-Appellant Jesus Villalobos (Defendant) appeals from an adverse

 4 judgment. We issued a notice of proposed summary disposition in which we proposed

 5 to uphold the judgment. Defendant has filed a memorandum in opposition, which we

 6 have duly considered. Because we remain unpersuaded by Defendant’s various

 7 assertions of error, we affirm.

 8        Initially, we will address several procedural matters.

 9        First, we observe that Defendant has filed both a memorandum in opposition

10 and an “amended” memorandum in opposition.              However, our rules do not

11 contemplate the filing of multiple memoranda in opposition under the circumstances

12 presented here. See generally Rule 12-210(D)(3) NMRA (allowing for “a” single

13 memorandum in opposition to be filed). As a result, it was incumbent upon

14 Defendant, at a minimum, to file a motion with this Court. See Rule 12-309(A)

15 NMRA (providing that all applications for relief not otherwise prescribed by the rules

16 shall be made by filing a motion). However, Defendant has filed no motion with this

17 Court seeking leave to amend. Although we might construe the subsequently-filed

18 document as an implicit motion, Defendant has failed either to provide any grounds

19 for the amendment, or to describe the position of opposing counsel relative to the



                                             3
 1 amendment. See Rule 12-309(B), (C) (providing that a motion “shall state concisely

 2 and with particularity . . . the ground on which it is based,” and shall address the

 3 position of opposing counsel). Moreover, the subsequently-filed document was

 4 submitted to this Court well beyond the applicable deadline, as previously extended

 5 by this Court, without providing any reasons therefor. See generally Rule 12-309(D)

 6 (indicating that where an extension of time is sought, the motion “shall state with

 7 particularity the reasons for the request”). As a result of the foregoing deficiencies,

 8 we decline to consider the “amended” memorandum in opposition. We shall restrict

 9 this Court’s discussion on the merits to the various points and authorities raised in the

10 original, timely-filed memorandum in opposition.

11        Second, Defendant has moved to supplement the record with a partial transcript

12 of the trial, as well as several documentary exhibits. Because the record proper

13 supplies enough information about the evidence, we find it unnecessary to review the

14 transcripts. Insofar as the majority of the documentary exhibits appear to be copies

15 of tape logs which already appear in the record, supplementation with those

16 documents is unnecessary. With respect to the two or three documents which appear

17 to be original, we decline to supplement the record because the district court does not

18 appear to have had the opportunity to consider them. See In Re N.M. Indirect

19 Purchasers Microsoft Corp., 2007-NMCA-007, ¶ 24, 140 N.M. 879, 149 P.3d 976



                                               4
 1 (“An appellate court does not review a district court decision on the basis of facts that

 2 are ostensibly in the record but were not before the court below when it made its

 3 ruling.”); In re Estate of Keeney, 121 N.M. 58, 60, 908 P.2d 751, 753 (Ct. App. 1995)

 4 (indicating that an appellate court would consider only matters that were considered

 5 by the trial court at the time it made its decision). Accordingly, the motion to

 6 supplement is denied.

 7        Third and finally, the caption of Defendant’s memorandum in opposition

 8 reflects a request for hearing. However, the body of the document does not explain

 9 the nature or basis for the request. See generally Rule 12-309(B) (providing that

10 motions for extraordinary relief “shall state concisely and with particularity the relief

11 sought and the ground on which it is based”). The motion is therefore denied.

12        This concludes our discussion of preliminary matters. We turn next to the

13 issues renewed by Defendant in his memorandum in opposition.

14        Issue 1: Defendant contends that the district court erred in allowing Plaintiff’s

15 claims to proceed as against him, despite the automatic stay that was entered as a

16 consequence of bankruptcy proceedings involving a co-defendant. [MIO 1-3]

17        As we previously observed, no authority has been cited for the proposition that

18 claims against corporate officers in their individual capacities must be stayed during

19 the pendency of bankruptcy proceedings involving named corporate defendants.



                                               5
 1 Under such circumstances, we are entitled to assume that no supporting authority

 2 exists. Murken v. Solv-Ex Corp., 2006-NMCA-064, ¶ 13, 139 N.M. 625, 136 P.3d

 3 1035.

 4         In his memorandum in opposition Defendant relies on Rule 1-019 NMRA,

 5 contending that Frank’s Oilfield Service, Inc., should have been deemed an

 6 indispensable party. [MIO 1-3] However, we find no indication in either Defendant’s

 7 submissions to this Court or in the record proper that Defendant advanced such an

 8 argument below. Because the absence of an indispensable party is no longer

 9 considered a jurisdictional defect, objection on that basis is waivable. See C.E.

10 Alexander & Sons, Inc. v. DEC Int’l, Inc., 112 N.M. 89, 91, 811 P.2d 899, 901 (1991)

11 (overruling prior cases holding that absence of indispensable party is jurisdictional

12 defect). Moreover, because the question whether a party is indispensable “is more a

13 factual question than a legal question,” Sims v. Sims, 1996-NMSC-078, ¶ 53, 122

14 N.M. 618, 930 P.2d 153, we are in no position to consider an argument of this nature

15 for the first time on appeal. See Pinnell v. Bd. of Cnty. Comm’rs of Santa Fe Cnty.,

16 1999-NMCA-074, ¶¶ 13-14, 127 N.M. 452, 982 P.2d 503 (declining to consider for

17 the first time on appeal an argument concerning dismissal for failure to join an

18 allegedly indispensable party; and explaining that an appellate court will not assume

19 the role of the trial court and delve into such fact-dependent inquiries when the



                                             6
 1 opposing party has had no opportunity to develop a record in response, and would

 2 therefore be prejudiced). We therefore reject Defendant’s first assertion of error.

 3        Issue 2: Defendant attacks the sufficiency of the evidence to support individual

 4 liability, contending that he acted at all pertinent times in his capacity as a corporate

 5 officer. [MIO 3-5]

 6        “Officers of corporations can be held personally liable when they commit

 7 intentional torts.” Kaveny v. MDA Enters., Inc., 2005-NMCA-118, ¶ 20, 138 N.M.

 8 432, 120 P.3d 854. The tape logs contained within the record proper indicate that

 9 Plaintiff submitted testimony and other evidence of both a direct and circumstantial

10 nature, which tended to support his various tort claims. This included evidence that

11 Defendant had himself claimed ownership of the rig without justification, [RP 416,

12 459, 473] Defendant failed to maintain the rig and ultimately had it stripped after it

13 was damaged, [RP 457, 474, 481-82] Defendant failed to compensate Plaintiff for the

14 use of the rig in deliberate violation of the terms of their lease agreements, [RP 470-

15 71, 475-76] and Defendant subsequently refused to return the rig upon demand. [RP

16 472] We therefore conclude that the various intentional torts were properly submitted

17 to the jury for its consideration.

18        With respect to the breach of contract claim, Plaintiff presented evidence which

19 tended to support his view that the lease agreements were made between Plaintiff and



                                               7
 1 Defendant individually. This evidence included Plaintiff’s testimony about the

 2 personal nature and handshake-basis of the business relationship between the parties,

 3 [RP 470] as well as the fact that he received some checks from Defendant’s personal

 4 account. [MIO 4] In light of this evidence, the jury was properly permitted to

 5 determine whether Defendant had entered into the lease agreements personally, as

 6 opposed to, in a corporate capacity, such that Defendant could be held individually

 7 liable.

 8           Ultimately, Defendant’s challenge to the sufficiency of the evidence appears to

 9 amount to an argument based on his own view that, on balance, the greater weight of

10 the evidence tended to establish that he acted in his corporate capacity. However,

11 “[i]t is for the fact-finder, not the appellate court, to weigh the evidence.” Kaveny,

12 2005-NMCA-118 ¶ 6. We therefore reject Defendant’s second assertion of error.

13           Issue 3: Defendant contends that the award of punitive damages was excessive

14 and inappropriate. [MIO 6-7]

15           Defendant’s argument appears to be premised on a narrow view of the evidence,

16 by which the only damages Plaintiff actually suffered were caused by a third party’s

17 destruction of the rig. [MIO 6-7] However, as previously described, our review of

18 the tape logs reflects that Plaintiff presented evidence that he had for several years

19 prior to that event suffered damages as a consequence of Defendant’s failure to



                                                8
 1 provide payments as required by the terms of the lease agreements between the

 2 parties. [RP 470-71, 475-76] As a result, we reject Defendant’s characterization of

 3 the nature of the damages suffered.

 4        We understand Defendant to suggest that punitive damages were improperly

 5 awarded in the absence of evidence of willful or malicious conduct. [MIO 7]

 6 However, as previously described, evidence appears to have been presented to indicate

 7 that Defendant committed a variety of intentional torts, such that the jury could have

 8 properly determined that Defendant’s conduct was malicious.

 9        Finally, Defendant argues in a perfunctory manner that the various criteria set

10 forth in Chavarria v. Fleetwood Retail Corp., 2006-NMSC-046, ¶ 36, 140 N.M. 478,

11 143 P.3d 717, do not support the award.           These criteria include:    “(1) the

12 reprehensibility of the defendant’s conduct, or the enormity and nature of the wrong;

13 (2) the relationship between the harm suffered and the punitive damages award; and

14 (3) the difference between the punitive damages award and the civil and criminal

15 penalties authorized or imposed in comparable cases.” Id. We disagree.

16        As previously stated, evidence of deliberate misconduct was presented, which

17 caused Plaintiff to suffer severe financial hardship, including the loss of his home.

18 [RP 474-75] As Chavarria illustrates, evidence of this nature provides significant

19 support for an award of punitive damages. Id. ¶ 37. The punitive damage award was



                                             9
 1 approximately twice the compensatory damage award, which we do not regard as an

 2 unreasonable relationship. See id. ¶ 38 (observing that punitive damage awards

 3 reflecting a single-digit ratio generally comport with due process, although greater

 4 awards may also be warranted in appropriate cases). Finally, insofar as Defendant’s

 5 misconduct could be characterized as consistent with various crimes such as fraud,

 6 conversion, criminal damage to property, and larceny, all involving substantial assets,

 7 “the potential civil and criminal penalties for conduct similar to that seen in this case

 8 weigh in favor of the reasonableness of a substantial punitive damages award.” Id. ¶

 9 39. Accordingly, we reject Defendant’s challenge to the punitive damages award.

10        Issue 4: Fourth and finally, Defendant claims that various deficiencies with

11 respect to the jury instructions rise to the level of fundamental error. [MIO 7]

12        As we previously observed in the notice of proposed summary disposition, “the

13 fundamental error doctrine does not apply to civil cases except in the most

14 extraordinary circumstances.” N.M. State Bd. of Psychologist Exam’rs v. Land,

15 2003-NMCA-034, ¶ 25, 133 N.M. 362, 62 P.3d 1244; and see generally Gracia v.

16 Bittner, 120 N.M. 191, 194-98, 900 P.2d 351, 354-58 (Ct. App. 1995) (discussing the

17 very limited role of fundamental error in civil cases and noting the importance of

18 counsel’s role in ensuring that facts and issues are properly presented to the jury).

19 Because we have been made aware of nothing about this case that might be regarded



                                              10
1 as so extraordinary as to warrant application of the doctrine, we reject Defendant’s

2 claim of fundamental error.

3       For the reasons stated above and in the notice of proposed summary disposition,

4 the judgment is affirmed.

5       IT IS SO ORDERED.



6                                               _______________________________
7                                               MICHAEL E. VIGIL, Judge


8 WE CONCUR:



 9 ____________________________
10 CYNTHIA A. FRY, Judge



11 ____________________________
12 LINDA M. VANZI, Judge




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