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                                                                 New Mexico Compilation
                                                               Commission, Santa Fe, NM
                                                              '00'05- 16:45:50 2013.02.28

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMCA-026

Filing Date: December 3, 2012

Docket No. 30,910

OSCAR SERNA,

       Plaintiff-Appellee,

v.

JONITA GUTIERREZ,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
C. Shannon Bacon, District Judge

Donavon A. Roberts
Albuquerque, NM

for Appellee

Olsen, Parden & Crow, P.C.
Shannon A. Parden
Albuquerque, NM

for Appellant

                                         OPINION

GARCIA, Judge.

{1}     The district court issued an opinion and order affirming a metropolitan court
judgment that awarded Oscar Serna (Landlord) restitution of the premises rented under a
federal housing program based on Jonita Gutierrez’s (Tenant) failure to timely pay rent for
two months and Tenant’s delay in the payment of a portion of her security deposit. Tenant
appeals the district court’s order, arguing that the metropolitan court terminated the tenancy
without complying with the federal requirements for termination and eviction. Because
Landlord failed to demonstrate a serious violation of the lease during its first one-year term,
we reverse and remand this matter to the metropolitan court for further proceedings.

                                              1
FACTS

{2}     Tenant rented a residential property from Landlord for a one-year term beginning
July 1, 2009 (the Lease). The Lease was entered into as part of a federal government rent-
subsidy assistance program commonly known as the Section 8 housing program. See 42
U.S.C. § 1437f (2009) (amended 2011). The applicable federal regulations relevant to the
parties dispute are codified at 24 C.F.R. § 982.310 (2010) (owner termination of tenancy).
A housing assistance payment contract was also executed by the parties and the public
housing agency, Albuquerque Housing Services, in order to comply with the requirements
to participate in the Section 8 housing program. See 24 C.F.R. § 982.305(c) (2004). Under
the Section 8 housing program, the Department of Housing and Urban Development (HUD)
enables tenants on public aid to acquire rental housing for a percentage of their public
assistance income, while the federal government guarantees to the landlord that it will pay
the balance of the fair rental value of a rental unit. See 42 U.S.C. § 1437f.

{3}     The Lease began on July 1, 2009, and required Tenant to pay a $700 security deposit.
The rent for the term of the Lease was $538 per month. The amount to be paid by federal
public housing assistance was $446 per month. Tenant’s monthly payment was $92. If the
rent was not paid in full on the first day of the month, the Lease authorized Landlord to
charge a $35 late payment fee. The Lease permitted Landlord to terminate the tenancy if
Tenant committed a serious violation of the Lease or a violation of federal, state, or local
law. It also permitted Landlord to terminate the Lease for other good cause but only after
the completion of the first one-year term of the Lease. It is not disputed that Landlord’s
petition to terminate the Lease occurred on August 13, 2009, during the first one-year term
of the Lease.

{4}     Tenant moved into the premises on June 28, 2009. Tenant paid $100 of the security
deposit prior to moving in and was told that she owed $74 in rent for the three days that she
occupied the premises during the month of June. In June, Tenant wrote two checks to
Landlord in an attempt to pay rent for the month of June and the $600 balance remaining on
the security deposit. When Landlord’s wife attempted to cash the checks, she discovered
that they were written from a closed account. Tenant failed to make any further payments
toward the amount claimed to be due for June rent. Tenant did pay the $600 remainder of
the security deposit on October 1, 2009.

{5}     In July and August, Tenant’s rent payments were delivered after the first day of the
month and were subject to a late charge under the Lease. Tenant did not pay her portion of
the July rent until July 17, 2009. Her July rent payment was late because Albuquerque
Housing Services did not mail Tenant her federal public assistance check and the letter
advising Tenant that her portion of the monthly rent payment was $92 until July 13, 2009.
Tenant mailed her portion of the August rent on August 3, 2009, the same day that she
received her federal public assistance check. By early October 2009, Tenant had fully paid
the security deposit and was current on all her monthly rent payments under the Lease.


                                             2
{6}     On August 13, 2009, Landlord filed a petition for restitution against Tenant, alleging
that he was entitled to possession of the premises because Tenant had breached the Lease
by failing to pay the full security deposit, the June rent, and the full amount of rent for July
and August. Landlord’s petition did not assert any claim that Tenant committed a violation
of law. At the time of his petition, Landlord claimed that the monthly rent amount for the
property was $875 per month. Tenant answered the petition, asserting that she had paid the
Lease amount of $538 per month and that she had paid $100 of the security deposit. She
argued that the parties had agreed that she could pay the $600 remainder of the security
deposit by October 2009, and alleged that Landlord’s petition was an attempt at retaliation
for her complaint to Landlord about a plumbing problem.

{7}     The metropolitan court held two hearings to address the issues in this case. After
hearing testimony from both parties, the metropolitan court found that the case came down
to credibility. It found much of Tenant’s testimony troubling. Although the court heard
testimony regarding Tenant’s prior criminal convictions involving bad checks, theft, and
fraud, its findings related to Tenant’s credibility were based on the substance of her
testimony, not her prior criminal convictions.

{8}     Ultimately, the metropolitan court found that the testimony from Landlord, his wife,
and his sister was more credible than Tenant’s testimony. As a result, the metropolitan court
entered a judgment for restitution in favor of Landlord and terminated the Lease. The
metropolitan court judgment restored the premises to Landlord and awarded Landlord $144
for past-due rent, $117 for costs, and $4,000 for attorney fees. The past-due rent amount was
calculated by adding Tenant’s $74 unpaid June rent with two $35 late rent payment fees for
the months of July and August.

{9}      Tenant appealed the metropolitan court judgment to the district court. On appeal,
she raised six issues: (1) that the metropolitan court erred in finding that she did not pay the
June rent; (2) whether any failure to pay the June rent could be used to evict her when the
Lease was not even in effect in June; (3) whether the metropolitan court erred in allowing
Landlord to introduce Tenant’s criminal background; (4) whether the metropolitan court
violated Tenant’s Section 8 property interest in the Lease by evicting Tenant without finding
a material violation of the Lease; (5) whether the metropolitan court erred in denying
Tenant’s counterclaim for retaliation; and (6) whether the metropolitan court erred in
awarding Landlord attorney fees and costs. After reviewing arguments by the parties and
the metropolitan court record, the district court affirmed the judgment of the metropolitan
court.

{10} Like the metropolitan court, the district court found that the case was largely one of
credibility. As such, it affirmed the findings of the metropolitan court, as a fact finder, with
regard to Tenant’s retaliation counterclaim, Tenant’s failure to timely pay the June rent, and
Tenant’s version of events with regard to the security deposit. The district court found that
Tenant failed to preserve her argument regarding the termination of the Lease based upon
any failure to timely pay her June rent but noted that the metropolitan court decision did not

                                               3
consider the June rent when it ruled in favor of Landlord. Instead, the district court found
that the metropolitan court ruled in favor of Landlord because it rejected Tenant’s version
of events with regard to the security deposit. The district court determined that Tenant’s
failure to pay her security deposit within the first three months of the one-year Lease was a
violation of her Section 8 tenancy.

{11} The district court also found that Tenant failed to preserve her legal argument that
the metropolitan court erred in evicting her without finding a material violation of the Lease.
However, the court did briefly address the issue. It concluded that the metropolitan court
implicitly determined that Tenant’s “failure to timely pay $600 of a $700 security deposit
constituted good cause or a serious violation of the [L]ease,” and that this determination was
not error.

{12} With regard to attorney fees, the district court found that the metropolitan court did
not err in determining that, as the prevailing party, Landlord was entitled to attorney fees.
It explained that while the $4,000 award of attorney fees was a large sum, Tenant had
requested $10,000 in attorney fees. It also concluded that Tenant never argued to either the
district court or the metropolitan court that Landlord’s attorney fee request was
unreasonable; she instead argued that Landlord was simply not entitled to attorney fees
because both parties won and lost issues in the case. Tenant timely appealed the district
court judgment restoring the property to Landlord and ordering Tenant to pay past-due rent,
fees, and costs.

STANDARD OF REVIEW

{13} Because this was an appeal from an on-record metropolitan court trial, the district
court reviewed the case in its appellate capacity for legal error. See NMSA 1978, §
34-8A-6(b) (1993); State v. Trujillo, 1999-NMCA-003, ¶ 4, 126 N.M. 603, 973 P.2d 855
(“For on-record appeals the district court acts as a typical appellate court, with the district
judge simply reviewing the record of the metropolitan court trial for legal error.”). We apply
the same review on appeal, determining whether there was legal error in the district court’s
determination. See Trujillo, 1999-NMCA-003, ¶ 4.

DISCUSSION

{14} Tenant argues on appeal that the district court erred in affirming the metropolitan
court’s judgment. Tenant argues that the metropolitan court erroneously terminated the
Lease due to Tenant’s non-payment of the June rent and without Landlord establishing the
statutory requirements to terminate, that substantial evidence supported her counterclaim for
retaliation, and that the metropolitan court erred in awarding attorney fees to Landlord.

Termination of the Lease

Preservation

                                              4
{15} We first address whether Tenant adequately preserved her objections with regard to
termination of the Lease. Tenant argues on appeal that it was error for the metropolitan court
to terminate the Lease without finding a material violation of the Lease. Tenant further
argues that it was error for the metropolitan court to consider Tenant’s non-payment of June
rent as part of the basis for terminating the Lease. Tenant appealed both of these issues to
the district court, and the district court held that neither issue was preserved for review. As
such, Tenant asks this Court to review her claim for fundamental error. Landlord responds
that the doctrine of fundamental error is inapplicable to Tenant’s appeal and argues that this
Court should not consider the merits of Tenant’s unpreserved appellate arguments.

{16} The metropolitan court decision to terminate the Lease reflects a finding that
Tenant’s payment of the security deposit in October and her late rental payments for July and
August constituted good cause or a serious violation of the lease. Without such a finding,
there was no contractual basis for Landlord to terminate the Lease. The only grounds for
Landlord to terminate the Lease during the first year’s term were for a “serious violation of
the terms and conditions of the Lease” or a violation of “federal, [s]tate, or local law.”
“Other good cause” was not a proper ground for termination of the Lease during this first
term. The burden was on Landlord to present evidence to establish his basis to terminate the
Lease. See Atma v. Munoz, 48 N.M. 114, 120, 146 P.2d 631, 634 (1944) (recognizing that
the burden is on the landlord in a lease dispute to establish that “the lease contract had been
breached and that such breach entitled [the landlord] to the possession of the property in
question”); Cunningham v. Springer, 13 N.M. 259, 285, 82 P. 232, 236-37 (1905)
(recognizing that the plaintiff bears the initial burden of proof to establish the existence of
a contract and the terms to be enforced under it), aff’d, 204 U.S. 647 (1907). Tenant has the
right to appeal this ruling in Landlord’s favor. See Rule 1-073(O) NMRA (stating that to
preserve a question for review by the district court in an appeal on the record, it must appear
that a ruling or decision by the metropolitan court was fairly invoked, that if a party has no
opportunity to object to a ruling or order at the time it is made, the absence of an objection
does not thereafter prejudice the party, and that the rule shall not preclude the district court
from considering jurisdictional questions or, in its discretion, questions involving general
public interest or fundamental error or fundamental rights of a party). Where Tenant’s
appeal is based upon whether the Landlord’s evidence met the contractual requirements for
termination, she has adequately preserved this issue by alerting the court to the insufficiency
of Landlord’s evidence to meet the required legal standard expressly stated in the Lease. See
Romero v. Mervyn’s, 109 N.M. 249, 253 n.2, 784 P.2d 992, 996 n.2 (1989) (explaining that
a party has adequately preserved a challenge to the sufficiency of evidence when that party
specifically calls the lack of substantial evidence on a material issue to the lower court’s
attention).

{17} Although the district court held that Tenant’s appeal was not preserved for review,
the record reflects that it addressed the merits of Tenant’s appellate issues. See Woolwine
v. Furr’s, Inc., 106 N.M. 492, 496, 745 P.2d 717, 721 (Ct. App. 1987) (“To preserve a
question for review it must appear that [a ruling or decision by the district court was] fairly
invoked[.]”). In doing so, the district court both recognized and affirmed the metropolitan

                                               5
court’s implicit determination that Landlord met the legal requirements to terminate the
Lease entered into by the parties on the basis of good cause or a serious lease violation.

{18} The primary purpose of the rule for preservation is to ensure “(1) that the [district]
court be alerted to the error so that it is given an opportunity to correct the mistake, and (2)
that the opposing party be given a fair opportunity to meet the objection.” Gracia v. Bittner,
120 N.M. 191, 195, 900 P.2d 351, 355 (Ct. App. 1995); see Rule 12-216(A) NMRA. Both
purposes of the preservation requirement were met in this case. The issue of whether
Landlord met the contract requirements for termination the Lease were fully contested by
Tenant in metropolitan court, and any implicit determination regarding how Landlord
actually met the burden of proof does not defeat Tenant’s opportunity to appeal that
determination. We conclude that Tenant properly preserved for appellate review in the
district court and in this Court the argument that the metropolitan court improperly
terminated the Lease based upon the evidence presented by Landlord.

Termination of a Section 8 Tenancy

{19} The Lease in this case was formed under the Section 8 Housing Choice Voucher
Program. See 42 U.S.C. § 1437f(o). The language of the Lease mirrors the federal
regulation, which permits a landlord to terminate a tenancy if a tenant commits a “[s]erious
violation [of the terms and conditions of the lease] (including but not limited to failure to pay
rent or other amounts due under the lease)[,]” 24 C.F.R. § 982.310(a)(1), or for “[o]ther good
cause,” 24 C.F.R. § 982.310(a)(3). However, the terms of the Lease explicitly state that
Landlord may not terminate for other good cause within the first one-year term of the Lease.
As such, the only material issue in this appeal is whether Tenant committed a serious
violation of the Lease—not whether Landlord had other good cause to terminate the Lease.

{20} Analysis of the claims of the parties requires an understanding of the Section 8
housing program. The Section 8 housing program exists “[f]or the purpose of aiding
low-income families in obtaining a decent place to live and of promoting economically
mixed housing.” 42 U.S.C. § 1437f(a). The Section 8 program is a cooperative venture
between HUD, the state, and local public housing agencies, which oversee the day-to-day
operations of the Section 8 program. 42 U.S.C. § 1437f(b). While state and local housing
agencies contract with landlords who own dwelling units to make assistance payments, HUD
enters into annual contribution contracts with the agencies. 42 U.S.C. § 1437f(b)(1).
Although it is the local public housing authorities that actually run the Section 8 program,
they must do so in accordance with applicable federal regulations. See 24 C.F.R. § 982.52
(1995). The Section 8 housing program in New Mexico must also comply with applicable
state law. See Carol Rickert & Assocs. v. Law, 2002-NMCA-096, ¶¶ 9-14, 132 N.M. 687,
54 P.3d 91 (analyzing the non-renewal of a lease under the Section 8 housing program and
whether the landlord’s notice complied with federal law and was unequivocal under New
Mexico law).

{21}    The present appeal requires this Court to interpret the statutory requirements for an

                                               6
owner’s termination of a tenancy under the Section 8 housing program and to review the
metropolitan court’s application of the federal standard in the particular circumstances of this
case. Our appellate review, therefore, requires this Court to determine whether the district
court correctly applied the law to the facts. State v. Kerby, 2007-NMSC-014, ¶ 11, 141 N.M.
413, 156 P.3d 704. As the relevant facts are not in dispute, the appropriate standard of
review is de novo. Garcia v. Jeantette, 2004-NMCA-004, ¶ 15, 134 N.M. 776, 82 P.3d 947;
see State v. Attaway, 117 N.M. 141, 144, 870 P.2d 103, 106 (1994) (“If . . . the question
requires us to consider legal concepts in the mix of fact and law and to exercise judgment
about the values that animate legal principles, then the concerns of judicial administration
will favor the appellate court, and the question should be classified as one of law and
reviewed de novo.” (internal quotation marks and citation omitted)); Morgan Keegan Mortg.
Co. v. Candelaria, 1998-NMCA-008, ¶ 5, 124 N.M. 405, 951 P.2d 1066 (reviewing de novo
a lower courts construction of a statute). In this case, before we can review the lower court’s
application of the facts to the federal statute, we must clarify the factual basis for Landlord’s
termination of the Lease.

{22} Tenant argues that it was error for the metropolitan court to consider non-payment
of her June rent as part of the basis for the termination of the Lease and her eviction.
However, in affirming the metropolitan court’s judgment, the district court explicitly stated
that the metropolitan court ruled in favor of Landlord “based on its rejection of [Tenant’s]
version of events with regard to the security deposit.” It concluded that it was not error for
the metropolitan court to implicitly determine that “failure to timely pay $600 of a $700
security deposit constituted good cause or a serious violation of the [L]ease.” Except for the
amount of damages awarded, Tenant has not pointed this Court to any evidence in the record
to support her contention that the termination of the Lease was in any way based on her
failure to pay June rent. See Muse v. Muse, 2009-NMCA-003, ¶ 72, 145 N.M. 451, 200 P.3d
104 (“We will not search the record for facts, arguments, and rulings in order to support
generalized arguments.”).

{23} Tenant has not challenged the district court’s findings with any specificity, and we
see nothing to indicate that the metropolitan court erroneously considered Tenant’s failure
to timely pay the June rent when it terminated the Lease. See Martinez v. Sw. Landfills, Inc.,
115 N.M. 181, 186, 848 P.2d 1108, 1113 (Ct. App. 1993) (“[A]n appellant is bound by the
findings of fact made below unless the appellant properly attacks the findings, and . . . the
appellant remains bound if he or she fails to properly set forth all the evidence bearing upon
the findings.”). Therefore, our obligation is to assume no error occurred. See Farmers, Inc.
v. Dal Mach. & Fabricating, Inc., 111 N.M. 6, 8, 800 P.2d 1063, 1065 (1990) (presuming
that the lower court is correct where appellant fails to clearly demonstrate error). As a result,
we limit our review to the issue of whether it was error for the metropolitan court to
conclude that Tenant’s late payments of the security deposit and her monthly rent for July
and August constituted a serious violation of the Lease that justified termination of the
Lease.

Serious Violation of a Lease

                                               7
{24} Under the Section 8 housing program, a serious lease violation is defined as
including, but not limited to, a failure to pay rent or other amounts due under the lease or a
repeated violation of the terms and conditions of the lease. 24 C.F.R. 982.310(a)(1). It is
not clear to this Court that a late payment or a partial payment is a “failure to pay” within
the meaning of the HUD regulation. The parties have not offered any legal authority on this
point. See In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984)
(explaining that where a party cites no authority to support an argument, we may assume no
such authority exists). We further recognize that a mere failure to timely pay lease
obligations may be cured by late tender. See City of Albuquerque v. Brooks, 114 N.M. 572,
574, 844 P.2d 822, 824 (1992) (recognizing that in cases involving public housing, it is an
equitable defense and the court may apply equitable principles for the nonpayment of back
rent to prevent eviction of a qualified indigent tenant).

{25} In this case, although Tenant’s payments may not have been timely, she had fully
paid all of her obligations under the Lease by October 2009. We find no evidence in the
record to support a finding that Tenant’s failure to timely pay rent on the first of the month
was based on anything other than the date she received her public assistance checks. HUD
has explicitly stated that it did not intend to allow a private landlord to terminate a tenancy
for untimely rent payments where it is evident to the landlord that the tenant was unable to
timely pay until the tenant received public assistance after the rent due date. See Am. Nat’l
Bank & Trust Co. v. Dominick, 507 N.E.2d 512, 513-15 (Ill. App. Ct. 1987) (identifying the
longstanding HUD interpretation of its lease terminology and its policy that material
noncompliance and termination of a tenancy cannot be based upon untimely rental payments
where it is evident to the landlord that tenant could only pay his portion of the rent when he
received his public assistance funds after the rent due date). As such, we conclude that
Tenant’s late payment of rent in this case would not constitute a “failure to pay rent” or a
“serious lease violation” within the meaning and interpretation of the HUD regulations. See
TBCH, Inc. v. City of Albuquerque, 117 N.M. 569, 572, 874 P.2d 30, 33 (Ct. App. 1994)
(giving “persuasive weight to long-standing administrative constructions of statutes by the
agency charged with administering them”). We conclude that Tenant’s late rental payments
for the month of July and August do not constitute a serious violation of the terms and
conditions of the Lease.

{26} With regard to the security deposit, New Mexico permits a landlord to demand from
the resident “a reasonable deposit to be applied by the owner to recover damages, if any,
caused to the premises by the resident during his term of residency.” NMSA 1978, §
47-8-18(A) (1989). However, a landlord is not entitled to withhold any portion of the
deposit until after the tenancy is terminated. See § 47-8-18(D). Under the terms of the
Lease, no date was identified regarding when Tenant would pay the security deposit, whether
partial payments could be made and, by its express terms, the amount of the security deposit
was not allowed to exceed one month’s rent. The stated security deposit amount of $700,
however, did exceed the monthly rental amount of $538. As a result, it is not clear from the
record whether Tenant’s delay in the payment of the full security deposit until October
constituted a violation of the Lease but, even if it did, nothing in the record indicates that the

                                                8
timing of Tenant’s payment of the security deposit had any significant or material adverse
effect on the Landlord’s property or economic benefits when they filed a petition to
terminate the Lease on August 13, 2009. See Wilhite v. Scott Cnty. Hous. & Redevelopment
Auth., 759 N.W.2d 252, 256 (Minn. Ct. App. 2009) (explaining that minor lease violations
do not significantly affect a landlord’s property or economic interest, whereas serious
violations deprive a landlord of either a tangible property interest or a real and significant
economic benefit). As such, the ambiguous language of the Lease and the lack of any
evidence identifying a significant or materially adverse effect on Landlord cannot establish
a serious violation based upon Tenant’s three-month delay in paying the balance of the
security deposit in October 2009.

{27}     The public policy behind the Section 8 housing program is structured to assist
financially disadvantaged members of our society. See Green Valley Mobile Home Park v.
Mulvaney, 1996-NMSC-037, ¶ 13, 121 N.M. 817, 918 P.2d 1317 (“[I]n . . . Brooks . . . , we
held that a federal regulation imposing a ‘good cause’ termination requirement was intended
to afford special protection to low-income tenants of subsidized housing.”); see also Wollmer
v. City of Berkeley, 122 Cal. Rptr. 3d 781, 791 (Ct. App. 2011) (classifying indigent persons
eligible to receive benefits under the Section 8 housing program as “the most vulnerable
population”). It is apparent that the most vulnerable members of our community warrant
protection from eviction by imposing a slightly higher standard on their landlords. In return,
landlords also benefit when they accept a tenant under the Section 8 housing program
because the government guarantees payment for a significant portion of the monthly rent.
These protections create a logical societal balance by providing landlords with reasonable
economic security and the community’s most vulnerable citizens with opportunities for
decent housing that they otherwise would be unable to obtain. Such a public policy would
apply to the benefit of Tenant under the facts of this case.

Good Cause

{28} We briefly address whether it was legal error for the metropolitan court to conclude
that the termination of the Lease was warranted based on the existence of “other good
cause.” Although HUD regulations permit a landlord to terminate for other good cause
based upon something the tenant did or failed to do, the express terms of the Lease do not
allow any termination for other good cause during the first one-year term of the Lease. 24
C.F.R. § 982.310(d)(2). The record also supports the contention that Landlord wanted
Tenant to pay a higher rental amount for the property—$875 per month rather than $538 per
month. Congress has also explicitly stated that a landlord’s desire to lease the unit at a
higher rental rate cannot be considered as a justification for “other good cause” during the
first year of a Section 8 housing program lease. 24 C.F.R. § 982.310(d)(2). Even if
Landlord were permitted to use the low rental amount as a good cause basis for terminating
the Lease, it could not do so until after the completion of the first one-year term of the Lease.
Because the parties were only in the first few months of the first term of the Lease, it was
error to allow Landlord to attempt to terminate the Lease on the basis of “other good cause.”
As a result, Landlord could only terminate on the basis of a serious violation of the terms and

                                               9
conditions of the Lease, and we have addressed that issue in Tenant’s favor. We reverse the
judgment of the district court regarding Landlord’s claim that he was entitled to terminate
the Lease and be awarded restitution of the premises.

Tenant’s Retaliation Counterclaim

{29} Tenant also appeals the metropolitan court’s denial of her counterclaim, arguing that
it was supported by substantial evidence. The record reflects that the metropolitan court
denied Tenant’s counterclaim because it did not find that Tenant’s testimony on the matter
was credible. This Court will not re-weigh the evidence or substitute our judgment for the
trier of fact on appeal. Landavazo v. Sanchez, 111 N.M. 137, 138, 802 P.2d 1283, 1284
(1990); Dibble v. Garcia, 98 N.M. 21, 23, 644 P.2d 535, 537 (Ct. App. 1982). Tenant has
failed to provide record citations to support her assertion that the Landlord’s conduct was
an improper retaliation. Consistent with our rules of appellate procedure, we will not
address the merits of Plaintiff’s sufficiency of the evidence argument any further. See Rule
12-213(A)(3) NMRA; see also Aspen Landscaping, Inc. v. Longford Homes of N.M., Inc.,
2004-NMCA-063, ¶¶ 28-29, 135 N.M. 607, 92 P.3d 53 (explaining that a party challenging
a finding for lack of substantial evidence must refer to “all of the evidence, both favorable
and unfavorable, followed by an explanation of why the unfavorable evidence does not
amount to substantial evidence, such as is necessary to inform both the appellee and the
Court of the true nature of the appellant’s arguments”). As a result, we conclude that the
district court did not err in concluding that the metropolitan court’s findings and conclusions
regarding Tenant’s counterclaim were supported by substantial evidence. See Rule 12-
213(A)(4); Nance v. Dabau, 78 N.M. 250, 252, 430 P.2d 747, 749 (1967) (“Findings must
be attacked on the basis that there is no substantial evidence to support them. If not so
attacked, the findings must be accepted as the facts in the case.” (citation omitted)).

Attorney Fees

{30} Because we have reversed the metropolitan court’s judgment terminating the Lease,
it is improper to award the Landlord attorney fees as the prevailing party. We remand this
matter to the metropolitan court for a redetermination of attorney fees, if any, on behalf of
the prevailing party in this eviction proceeding.

CONCLUSION

{31}     We reverse the portion of the district court’s opinion and order that affirmed the
metropolitan court’s termination of the Lease and its award of Landlord’s attorney fees. We
affirm the portion of the opinion and order that affirmed the metropolitan court’s judgment
denying Tenant’s retaliation counterclaim. We remand this matter to the metropolitan court
for further proceedings consistent with this Opinion.

{32}   IT IS SO ORDERED.


                                              10
                                          ____________________________________
                                          TIMOTHY L. GARCIA, Judge

WE CONCUR:

___________________________________
CELIA FOY CASTILLO, Chief Judge

___________________________________
LINDA M. VANZI, Judge

Topic Index for Serna v. Gutierrez, No. 30,910

APPEAL AND ERROR
Attorney Fees
Preservation of Issues for Appeal
Remand
Standard of Review
Substantial or Sufficient Evidence

FEDERAL LAW
Federal Law, General

PROPERTY LAW
Landlord Tenant
Leases and Leaseholds




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