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


 2 ROMAN COLTER,

 3          Plaintiff-Appellee,

 4 v.                                                                                     No. 32,266

 5 BILLY EDWARDS,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY
 8 Daniel Viramontes, District Judge

 9 Roman Colter
10 Florence, AZ

11 Pro Se Appellee

12 Billy L. Edwards
13 Deming, NM

14 Pro Se Appellant

15                                 MEMORANDUM OPINION

16 SUTIN, Judge.
 1        Defendant Billy Edwards appeals from the district court’s order filed July 9,

 2 2012. [RP 110-11] On appeal, Defendant asks this Court to grant his motion for stay

 3 and to reverse the district court’s July 9, 2012, order. The calendar notice proposed

 4 to deny the motion for stay and to affirm the district court’s July 9, 2012, order. [Ct.

 5 App. File, CN1] Defendant has filed a memorandum in opposition that we have duly

 6 considered. [Ct. App. File, MIO] Unpersuaded, however, we deny Defendant’s

 7 motion for stay, and we affirm the district court’s July 9, 2012, order.

 8 DISCUSSION

 9 A.     Defendant’s Motion for a Stay Pending Appeal Outcome

10        On July 11, 2012, Defendant filed a motion for a stay pending the appeal’s

11 outcome. Motions for stay may be filed in this Court, after review and ruling by the

12 district court, pursuant to Rule 12-207(B) NMRA. We note that Defendant did not

13 provide all the documentation and information required for this Court to review the

14 district court’s actions on the motion, as required by Rule 12-207(B).             The

15 supplemental record proper, however, indicates that the district court ruled on

16 Defendant’s motion for stay. [Supp. RP 135] The district court’s order states that

17 Defendant’s motion for stay would be granted if Defendant posted a supersedeas bond

18 in the amount of $2,000 to cover the $1,400 in damages awarded to Plaintiff in the

19 district court’s judgment. [Id. (¶ 6)]


                                              2
 1        A supersedeas bond is required to be posted in order to secure the underlying

 2 judgment pending Defendant’s appeal to this Court. See NMSA 1978, Section 39-3-

 3 22(A) (2007) (stating in relevant part that “[t]here shall be no supersedeas or stay of

 4 execution upon any final judgment or decision of the district court in any civil action

 5 in which an appeal has been taken or a writ of error sued out unless the appellant or

 6 plaintiff in error, or some responsible person for the appellant or plaintiff in error,

 7 within sixty days from the entry of the judgment or decision, executes a bond to the

 8 adverse party in double the amount of the judgment complained of, with sufficient

 9 sureties, and approved by the clerk of the district court in case of appeals or by the

10 clerk of the supreme court in case of writ of error”).

11        Defendant has not filed the supersedeas bond required by Section 39-3-22(A)

12 and the district court order; and sixty days have passed from entry of the district

13 court’s judgment against him that was filed July 9, 2012. [RP 110-11, 125-26] While

14 in his response to the calendar notice Defendant has expressed his disappointment that

15 this Court has proposed to affirm the district court’s denial of his motion for stay,

16 Defendant has not cited new, relevant facts or authorities that persuade us that the

17 proposed disposition is incorrect or inappropriate. Under the circumstances, “[o]ur

18 courts have repeatedly held that, in summary calendar cases, the burden is on the party




                                              3
 1 opposing the proposed disposition to clearly point out errors in fact or law.” Hennessy

 2 v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683.

 3        For the reasons set forth herein and in the calendar notice, we affirm the district

 4 court’s order denying Defendant’s motion.

 5 B.     Issues on Appeal

 6        In his docketing statement, Defendant contends that the district court violated

 7 his double jeopardy rights because the court allowed Plaintiff to refile his case after

 8 it was dismissed. In addition, Defendant contends that the district court erred in

 9 entering the July 9, 2012 order. We affirm.

10 C.     Double Jeopardy, Collateral Estoppel, and Res Judicata

11        This is a civil action against Defendant for failure to pay rent and failure to

12 vacate the premises. Early in the lawsuit, as the district court recognized, Plaintiff’s

13 initial complaint was dismissed without prejudice, and Plaintiff subsequently refiled

14 a complaint against Defendant. [RP 3; SRP 135 (¶ 2)] The case was tried in a bench

15 trial before the district court on May 8, 2012, and June 28, 2012, and the district court

16 entered its final order on July 9, 2012. [RP 110-11]

17        The doctrine of double jeopardy is not applicable in this civil case. See, e.g.,

18 State v. Angel, 2002-NMSC-025, ¶ 8, 132 N.M. 501, 51 P.3d 1155 (stating that “[t]he

19 concept of ‘attachment of jeopardy’ arises from the idea that there is a point in a


                                               4
 1 criminal proceeding at which the constitutional purposes and policies behind the

 2 Double Jeopardy Clause are implicated and the defendant is put at risk of conviction

 3 and punishment”). Moreover, the doctrines of collateral estoppel and res judicata do

 4 not bar the second complaint, the trial, or the district court’s final order, where the

 5 case was not tried on the merits or ruled upon prior to its dismissal without prejudice.

 6 See, e.g., Alba v. Hayden, 2010-NMCA-037, ¶ 6, 148 N.M. 465, 237 P.3d 767 (stating

 7 that “[c]laim preclusion or res judicata bars relitigation of the same claim between the

 8 same parties or their privies when the first litigation resulted in a final judgment on

 9 the merits” and “[i]ssue preclusion or collateral estoppel prevents a party from

10 re-litigating ultimate facts or issues actually and necessarily decided in a prior suit”

11 (internal quotation marks and citations omitted)).

12        In his response to the calendar notice, Defendant has not cited new, relevant

13 facts or authorities that persuade us that the calendar notice analysis on this issue was

14 incorrect or inappropriate. Thus, as the appellate court, we presume that the trial

15 court is correct. See, e.g., Farmers, Inc. v. Dal Mach. & Fabricating, Inc., 111 N.M.

16 6, 8, 800 P.2d 1063, 1065 (1990) (“The presumption upon review favors the

17 correctness of the trial court’s actions.”). Moreover, the burden is on Defendant to

18 clearly demonstrate that the district court erred. See id.




                                               5
 1        Defendant has not persuaded us that the district court erred on this issue and,

 2 therefore, we hold that the district court’s final order is not barred by double jeopardy,

 3 collateral estoppel, or res judicata.

 4 D.     The July 9, 2012 order

 5        We review the July 9, 2012, order to determine whether the findings are

 6 supported by substantial evidence and whether the findings support the conclusions

 7 of law. “Substantial evidence is such relevant evidence that a reasonable mind would

 8 find adequate to support a conclusion.” Landavazo v. Sanchez, 111 N.M. 137, 138,

 9 802 P.2d 1283, 1284 (1990). “In accordance with the standard of review, when

10 considering a claim of insufficiency of the evidence, the appellate court resolves all

11 disputes of facts in favor of the successful party and indulges all reasonable inferences

12 in support of the prevailing party.” Las Cruces Prof’l Fire Fighters v. City of Las

13 Cruces, 1997-NMCA-044, ¶ 12, 123 N.M. 329, 940 P.2d 177.

14        In this case, Plaintiff’s predecessor-in-interest in the property in dispute, Mr.

15 Jones, contended that Defendant wrongfully tried to take ownership and possess the

16 property, vandalized it, did not pay rent while he occupied it, and would not surrender

17 the premises to the rightful owner, Plaintiff. [RP 61-62] Defendant contended,

18 however, that Mr. Jones conveyed the property to him and that he was the rightful

19 owner. [RP 110 (¶ 1)]


                                               6
 1        At the hearing, Mr. Jones, the original owner of the property, testified that he

 2 prepared some documentation regarding the property so that Defendant could attempt

 3 to obtain financing to purchase it. [RP 110 (¶ 2)] In addition, evidence was presented

 4 that, by correspondence, Defendant voided any contract that may have existed

 5 between Defendant and Mr. Jones to purchase the property. [RP 110 (¶ 4)] Mr. Jones

 6 then conveyed the property to Plaintiff, and Plaintiff requested that Defendant pay rent

 7 for the time he had occupied the property and requested that Defendant vacate the

 8 premises. [RP 110-11] In addition, evidence was presented that Defendant was to pay

 9 $200 per month in rent while he occupied the premises, which Defendant failed to do

10 for the seven months after the conveyance of the property to Plaintiff. [RP 110-11]

11        Based on this evidence, the district court found that Plaintiff was the rightful

12 owner of the property, and therefore, the district court ordered Defendant to vacate the

13 premises and to pay Plaintiff $1,400 in rent for the seven months Defendant occupied

14 the property after its conveyance to Plaintiff. [RP 110-11]

15        We hold that substantial evidence supports the district court’s finding that

16 Plaintiff is the rightful owner of the property. Moreover, this finding supports the

17 district court’s conclusion to order Defendant to vacate the property and to pay back

18 rent in the amount of $1,400. As we discussed in the calendar notice, to the extent

19 that Defendant presented conflicting testimony at the hearing as to the intent of the


                                              7
 1 parties and the facts and events leading up to the dispute, and similarly continues to

 2 present conflicting statements in his response to the calendar notice, this Court does

 3 not reweigh the evidence or determine the credibility of the witnesses.                See

 4 Buckingham v. Ryan, 1998-NMCA-012, ¶ 10, 124 N.M. 498, 953 P.2d 33 (“[W]hen

 5 there is a conflict in the testimony, we defer to the trier of fact.”); see also Tallman v.

 6 ABF (Arkansas Best Freight), 108 N.M. 124, 127, 767 P.2d 363, 366 (Ct. App. 1988)

 7 (recognizing that this Court lacks any opportunity to observe demeanor and we cannot

 8 weigh the credibility of live witnesses), holding modified on other grounds by

 9 Delgado v. Phelps Dodge Chino, Inc., 2001-NMSC-034, 131 N.M. 272, 34 P.3d 1148.

10        We affirm the district court’s July 9, 2012, order.

11        IT IS SO ORDERED.


12                                           __________________________________
13                                           JONATHAN B. SUTIN, Judge

14 WE CONCUR:


15 ______________________________________
16 CELIA FOY CASTILLO, Chief Judge


17 ______________________________________
18 TIMOTHY L. GARCIA, Judge




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