 1      IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 2 P. J. MILETA and WENDY MILETA,

 3        Plaintiffs-Appellants,

 4 v.                                                                        NO. 28,918

 5 ROBERT R. JEFFRYES,

 6        Defendant-Appellee.


 7 APPEAL FROM THE DISTRICT COURT OF COLFAX COUNTY
 8 Sam B. Sanchez, District Judge

 9 Kelley Law Offices
10 Cody K. Kelley
11 Albuquerque, NM

12 for Appellants

13 Robin C. Blair
14 Raton, NM

15 for Appellee



16                            MEMORANDUM OPINION

17 CASTILLO, Judge.

18        Plaintiffs appeal from the district court’s judgment as a matter of law in favor

19 of Defendant on Plaintiffs’ claims and in favor of Defendant on his counterclaim. We
 1 issued a notice of proposed disposition proposing to affirm, and Defendant filed a

 2 timely memorandum in support. Pursuant to an extension, which Defendant opposed,

 3 Plaintiffs filed a timely memorandum in opposition. After considering the arguments

 4 raised by the parties in their memoranda and remaining unpersuaded, we affirm the

 5 district court’s judgment.

 6 Directed verdict

 7        Plaintiffs contend that the district court erred by granting directed verdict in

 8 favor of Defendant on Plaintiffs’ claims for fraudulent misrepresentation, breach of

 9 contract, breach of an implied contract of good faith and fair dealing, violation of the

10 Unfair Trade Practices Act, and prima facie tort. [MIO 4-8; DS 3, 4-5] We agree with

11 Plaintiffs that directed verdict is only warranted when it is clear that “the facts and

12 inferences are so strongly and overwhelmingly in favor of the moving party that the

13 judge believes that reasonable people could not arrive at a contrary result.” [MIO 2]

14 Melnick v. State Farm Mut. Auto. Ins. Co., 106 N.M. 726, 729, 749 P.2d 1105, 1108

15 (1988). We resolve “[a]ny conflicts in the evidence or reasonable interpretations of

16 the evidence . . . in favor of the party resisting the directed verdict.” Sunwest Bank of

17 Clovis, N.A. v. Garrett, 113 N.M. 112, 115, 823 P.2d 912, 915 (1992).

18        In support of their contention that the district court erred in granting a directed

19 verdict in Defendant’s favor, Plaintiffs claim that they testified that Defendant


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 1 represented that the house would not cost over $300,000 to build, and Defendant

 2 admitted that he never disclosed to Plaintiffs what his costs would entail in a

 3 “meaningful fashion.” [MIO 3-4] Plaintiffs also contend that they presented

 4 “circumstantial evidence” which “tended to show” Defendant used Plaintiffs’ money

 5 to pay bills and fund other projects. [MIO 4] They also claim that they introduced

 6 evidence regarding the amounts Plaintiffs paid to Defendant, Defendant’s alleged

 7 failure to pay bills in a timely manner, Plaintiffs’ reliance on Defendant’s

 8 representations, and the damages they suffered. [MIO 4-5] They claim that they

 9 testified as to the terms of the oral construction contract between the parties, their

10 understanding of the agreement, and Defendant’s unfair treatment of Plaintiffs and his

11 breach of the terms of the contract. [MIO 5-8]

12        In our previous notice, we observed that Plaintiffs had failed to provide a

13 review of the evidence introduced at trial by Defendant in support of the district

14 court’s decision. See Rule 12-208(D)(3) NMRA; Thornton v. Gamble, 101 N.M. 764,

15 769, 688 P.2d 1268, 1273 (Ct. App. 1984) (stating that the docketing statement must

16 set forth evidence that supports the lower court’s ruling). We assumed that Defendant

17 cross-examined Plaintiffs’ witnesses and possibly introduced exhibits as a part of that

18 cross-examination. For example, we questioned whether Defendant introduced

19 evidence showing that he was relieved of further performance on the contract between


                                              3
 1 the parties due to Plaintiffs’ breach of contract and that the costs were increased due

 2 to Plaintiffs’ request for changes and modifications. [RP 24-26] We also questioned

 3 whether Defendant had introduced a certificate of completion showing the degree of

 4 work performed before allegedly abandoning the project and whether he introduced

 5 some evidence of the fair market value of Plaintiffs’ home and other documentary

 6 evidence such as appraisals, cost estimates, plans, a certificate of occupancy, photos,

 7 portions of Plaintiffs’ depositions, and employee time records. [RP 26, 120-121] We

 8 instructed Plaintiffs to inform us whether any of these materials were introduced at

 9 trial by Defendant in support of his motion for directed verdict. See Amrep Southwest,

10 Inc. v. Town of Bernalillo, 113 N.M. 19, 22, 821 P.2d 357, 360 (Ct. App. 1991)

11 (stating that where the appellant does not set forth the relevant evidence in the

12 docketing statement, a claim that the evidence does not support the judgment will be

13 rejected).

14        In their memorandum in opposition, Plaintiffs have failed to provide this

15 information and, despite our instructions, Plaintiffs have failed to provide us with a

16 review of the evidence introduced at trial in support of the district court’s decision.

17 Moreover, in his memorandum in support, Defendant affirmatively states that he did

18 cross-examine Plaintiffs’ witnesses. [MIS 2] He also identifies forty documents that

19 were admitted into evidence including, but not limited to: worksheets and supporting


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 1 documents of Defendant, itemization of payments made and received, photographs of

 2 Plaintiffs’ house, worker time sheets, invoices submitted by various suppliers and

 3 invoices paid by Defendant, a certificate of occupancy, and two appraisals of the

 4 property at $410,000 and $450,000, respectively. [MIS 2-3] Although Defendant

 5 fails to inform us as to the exact substance of these various documents or the

 6 testimony he elicited in cross examination, Plaintiffs, as the appellants, are charged

 7 with the duty of providing a record adequate to review the issues on appeal and to set

 8 forth all of the evidence that supports the trial court’s ruling. See Rule 12-208(D)(3);

 9 Thornton, 101 N.M. at 769, 688 P.2d at 1273. Plaintiffs have failed to do so and

10 instead, in their memorandum in opposition, they only provide us with a review of the

11 evidence and testimony introduced by them to support their claims. [MIO 3-8]

12        In light of Plaintiffs’ continuing failure to fulfill their duty to provide the

13 evidence and testimony relied upon by the district court in granting directed verdict,

14 we assume there was evidence to support that court’s judgment. See Reeves v.

15 Wimberly, 107 N.M. 231, 236, 755 P.2d 75, 80 (Ct. App. 1988) (stating that “[u]pon

16 a doubtful or deficient record, every presumption is indulged in favor of the

17 correctness and regularity of the trial court's decision, and the appellate court will

18 indulge in reasonable presumptions in support of the order entered”). We affirm the

19 district court’s judgment in favor of Defendant on this basis.


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 1 Notice

 2        In their docketing statement, Plaintiffs also claimed that the district court erred

 3 in entering a decree of foreclosure even though junior lienholders and mortgagees on

 4 the property had not received notice of the foreclosure. [DS 6] We proposed to affirm

 5 because, even though junior lienholders are entitled to notice before any sale of

 6 foreclosure, there is no requirement that they be notified before a decree of foreclosure

 7 is entered. See NMSA 1978, § 39-5-18 (2007) (addressing the redemption rights of

 8 a former owner or lienholders when real property is sold under judgment or a decree

 9 of foreclosure); cf. Western Bank v. Fluid Assets Dev. Corp., 111 N.M. 458, 462, 806

10 P.2d 1048, 1052 (1991) (recognizing that junior lienholders are entitled to notice of

11 a foreclosure sale). Plaintiffs have failed to respond to our proposed disposition of

12 this issue. See Taylor v. Van Winkle’s IGA Farmer’s Mkt., 1996-NMCA-111, ¶ 5, 122

13 N.M. 486, 927 P.2d 41 (recognizing that issues raised in a docketing statement, but

14 not contested in a memorandum in opposition are abandoned); cf. Hennessy v. Duryea,

15 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly

16 held that, in summary calendar cases, the burden is on the party opposing the proposed

17 disposition to clearly point out errors in fact or law.”). Therefore, for the reasons set

18 forth in our notice of proposed summary disposition, we affirm on this issue.

19 Witness exclusion


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 1        Finally, we turn to Plaintiffs’ contention in their docketing statement that the

 2 district court erred in excluding one of their witnesses who would have testified that

 3 Defendant willfully engaged in an unfair trade practice under the Unfair Practices Act,

 4 NMSA 1978, Sections 57-12-1 to -26 (1967, as amended through 2007) (UPA). [DS

 5 7] We review the admission or exclusion of evidence for abuse of discretion. See

 6 Coates v. Wal-Mart Stores, Inc., 1999-NMSC-013, ¶ 36, 127 N.M. 47, 976 P.2d 999.

 7        In our notice, we proposed to affirm in part because we were of the opinion that

 8 the UPA would not apply to a contract involving the construction of a residence which

 9 “as a form of realty, cannot be ‘goods’” and it “cannot constitute ‘services.’”

10 McElhannon v. Ford, 2003-NMCA-091, ¶¶ 16-17, 134 N.M. 124, 73 P.3d 827 (stating

11 that the UPA does not apply to a transaction in which “goods and services are

12 combined to create a structure that is permanently affixed to realty” because in such

13 circumstances the goods and services “are understood to have been ‘converted’ to

14 realty” (internal quotation marks and citation omitted)). In their memorandum in

15 opposition, Plaintiffs do not reassert their contention regarding the alleged improper

16 exclusion of testimony. However, they do contend that McElhannon only applies to

17 contracts for the sale of a completed house and that this case involves the sale of the

18 materials to build a home and the building services performed by Defendant as the

19 contractor. [MIO 7]


                                              7
 1        Assuming without deciding that Plaintiffs are correct as to the meaning of

 2 McElhannon, we nonetheless affirm. In our notice, we observed that Plaintiffs failed

 3 to inform us of the district court’s reasoning in refusing to allow the witness’s

 4 testimony. We instructed Plaintiffs to inform us of the district court’s reasoning for

 5 excluding the witness. Plaintiffs have failed to do so and, therefore, we can affirm on

 6 that basis alone. See Reeves, 107 N.M. at 236, 755 P.2d at 80. Moreover, as the

 7 district court apparently found that Defendant’s evidence negated Plaintiffs’ claims

 8 for breach of contract and fraudulent misrepresentation, the court could have properly

 9 excluded the witness’s testimony regarding Plaintiffs’ claim under the UPA as

10 irrelevant because the court had already decided that Plaintiffs failed to establish any

11 misrepresentation on the part of Defendant. See § 57-12-2(D) (requiring a showing

12 that the defendant made a knowingly false statement in order for the plaintiff to

13 prevail on a claim under the UPA); Rule 11-402 NMRA (stating that, “[e]vidence

14 which is not relevant is not admissible”).

15        For the reasons set forth above and discussed in our notice, we affirm.




16        IT IS SO ORDERED.




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1                                        ________________________________
2                                        CELIA FOY CASTILLO, Judge

3 WE CONCUR:



4 ________________________________
5 ROBERT E. ROBLES, Judge



6 ________________________________
7 LINDA M. VANZI, Judge




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