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


 2   ANTONIA VALLES, JESUS VALLES,
 3   JULIAN VALLES, ISABEL V.
 4   THOMPSON, CLAUDIA V. DELGADO,
 5   FRANCISCO VALLES, SONIA
 6   VALLES, ILDEFONSO VALLES, and
 7   LOURDES VALLES,

 8          Plaintiffs-Appellees,

 9 v.                                                                                     NO. 34,868

10 CARLOS ORTIZ,

11          Defendant-Appellant.


12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
13 Manuel I. Arrieta, District Judge


14 Guevara, Rebe, Baumann, Coldwell
15 Colbert N. Coldwell
16 El Paso, TX

17 for Appellees

18 Charles E. Hawthorne
19 Ruidoso, NM
 1 for Appellant




 2                              MEMORANDUM OPINION

 3 WECHSLER, Judge.

 4   {1}   Defendant appeals a judgment entered following a bench trial in which the

 5 district court judgment rescinded a contract for the sale of real estate, quieting title in

 6 favor of Plaintiffs, who were the sellers, and awarding liquidated damages calculated

 7 from amounts that were past-due pursuant to the contract. [RP 293-95] Defendant’s

 8 docketing statement challenged the district court’s award of damages, rescission, and

 9 attorney fees. [DS 7, 9, 12, 14, 15] This Court proposed to affirm the district court’s

10 judgment [CN 3, 5, 7, 8], and Defendant has filed a memorandum in opposition to that

11 proposed disposition, asserting the same arguments raised in his docketing statement.

12 Unpersuaded, we now affirm.

13   {2}   As his first argument, Defendant continues to assert that, pursuant to

14 Buckingham v. Ryan, 1998-NMCA-012, 124 N.M. 498, 953 P.2d 33, any award of

15 both damages and rescission constitutes an impermissible double recovery. [MIO 1-2]

16 Our notice of proposed summary disposition noted that the damages awarded in this

17 case did not involve any acceleration of payments under the relevant contract and,

18 instead, consisted solely of an award of money due prior to the rescission of that

                                                2
 1 contract. [CN 2] We, therefore, proposed to hold that no expectancy damages, which

 2 Buckingham would prohibit, were awarded in this case and, instead, only liquidated

 3 damages, which were explicitly affirmed in Buckingham, were awarded. [CN 2-3] See

 4 Buckingham, 1998-NMCA-012, ¶ 27 (reversing the district court’s award of “contract

 5 damages,” but not liquidated damages). Defendant’s memorandum in opposition does

 6 not address the distinction between payments due prior to rescission and payments

 7 that would have become due had there been no rescission. [MIO 1-2] Instead,

 8 Defendant simply asserts—without citation to any authority—that his own refusal to

 9 make payments as they became due transformed those payments into expectancy

10 damages rather than merely being past-due liquidated damages. [MIO 2] We are not

11 persuaded. See ITT Educ. Servs., Inc. v. Taxation & Revenue Dep’t, 1998-NMCA-078,

12 ¶ 10, 125 N.M. 244, 959 P.2d 969 (declining review of issues that are unsupported by

13 authority).

14   {3}   As his second issue, Defendant continues to assert that the district court erred

15 by not crediting his unrebutted testimony regarding misrepresentations about the

16 quantity of land at issue in this case. [MIO 2-3] As more fully explained in our notice

17 of proposed summary disposition, Defendant is mistaken with regard to the

18 substantive law on this point. [CN 3-4] See Strickland v. Roosevelt Cty. Rural Elec.

19 Coop., 1980-NMCA-012, ¶ 24, 94 N.M. 459, 612 P.2d 689 (acknowledging that the


                                               3
 1 credibility of an interested witness is always to be assessed by the trier of fact). And,

 2 more importantly, we proposed to hold that any question regarding the amount of land

 3 at issue in this case was mooted by the rescission of the contract. [CN 4-5] As

 4 Defendant’s memorandum in opposition does not assert any error in that proposed

 5 conclusion, we now so hold. See State v. Johnson, 1988-NMCA-029, ¶ 8, 107 N.M.

 6 356, 758 P.2d 306 (treating as abandoned issues not raised in a memorandum in

 7 opposition to summary disposition).

 8   {4}   Defendant also continues to argue that the forfeiture at issue in this case should

 9 shock this Court’s conscience. [MIO 3-4] In his docketing statement, Defendant

10 suggested that our resolution of that issue should turn upon factors described in

11 Buckingham, 1998-NMCA-012, ¶ 12. [CN 6] Our proposed disposition noted that

12 some of the facts necessary to address those factors may not have been before the

13 district court. [CN 6 n.1 (instructing Defendant to inform this Court what facts and

14 evidence relevant to this issue were actually before the district court)]

15   {5}   In his memorandum in opposition, Defendant now cites to Huckins v. Ritter,

16 1983-NMSC-033, 99 N.M. 560, 661 P.2d 52, for the assertion that the “qualifying

17 factor” to be considered is the percentage of the purchase price paid. [MIO 3-4] It is

18 true that the Huckins opinion notes that the buyer had paid nearly one-third of the

19 purchase price at the time of rescission. Id. ¶ 5. But that opinion also relies upon the


                                               4
 1 facts that: “[the buyers] were in possession of the property only [for seven months;

 2 t]he property still has a market value equal to the original sale price[; and t]he house

 3 can be rented for a figure between $600 and $1,500 per month.” Id. Each of these facts

 4 is directly relevant to the factors discussed in Buckingham, and all are relevant to the

 5 question currently before this Court. Compare id., with Buckingham,

 6 1998-NMCA-012, ¶ 7. Then, having argued that the percentage of the purchase price

 7 paid by a buyer is the primary consideration, Defendant never addresses what that

 8 percentage was in this case; instead he asserts that he “paid 4/5ths of the down

 9 payment and testified that he would have paid the balance of the down payment[.]”

10 [MIO 4]

11   {6}   Ultimately, we are unpersuaded that the forfeiture in this case was so

12 unwarranted as to shock the conscience. As pointed out in our notice of proposed

13 summary disposition, Defendant was in possession of the property for five years. [CN

14 6] Defendant’s memorandum in opposition makes no attempt to show that the

15 amounts he ultimately paid pursuant to the contract exceeded the value of that five-

16 year term of possession, much less that the amounts paid were so excessive as to

17 shock the conscience of this Court.

18   {7}   Finally, Defendant continues to assert that the district court erred in awarding

19 attorney fees pursuant to the contract. [MIO 4-5] In his docketing statement,


                                               5
 1 Defendant relied upon Buckingham to argue that attorney fees may be awarded only

 2 where a seller responds to a buyer’s breach by accelerating payments and enforcing

 3 the contract. [DS 16] As pointed out in our proposed disposition, Buckingham merely

 4 enforced the attorney fee provision contained in the contract at issue in that case. [CN

 5 7] See Buckingham, 1998-NMCA-012, ¶ 26 (noting that “[s]ince there is no statute

 6 permitting the award of attorney fees applicable to this appeal, we look to the parties’

 7 contract to determine whether [the s]eller is entitled to his fees”). As also pointed out

 8 in our proposed disposition that the contract at issue in this case:

 9         contains a general attorney fees provision that recites: “If either party
10         uses the services of any attorney to enforce that party’s rights or the
11         other party’s obligations under this Contract, the prevailing party will
12         recover reasonable attorneys fees and costs from the non-prevailing
13         party.”

14 [CN 7 (quoting RP 13)]

15   {8}   Defendant’s memorandum neither addresses nor acknowledges the existence

16 of that fee provision in the contract. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24,

17 124 N.M. 754, 955 P.2d 683 (explaining that “the burden is on the party opposing the

18 proposed disposition to clearly point out errors in fact or law”). Finding no error in the

19 district court’s interpretation of the attorney fee provision agreed to by the parties, we

20 affirm the district court’s award of attorney fees.




                                               6
1   {9}    For the foregoing reasons, the judgment entered by the district court is affirmed

2 in its entirety.



3   {10}   IT IS SO ORDERED.


4                                                  ________________________________
5                                                  JAMES J. WECHSLER, Judge


6 WE CONCUR:


7 ________________________________
8 M. MONICA ZAMORA, Judge


 9 ________________________________
10 J. MILES HANISEE, Judge




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