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                                                              New Mexico Compilation
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                                                           '00'04- 13:46:02 2012.11.01
       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-110

Filing Date: September 18, 2012

Docket No. 31,006

ORA LEE HARRIS and
LORANDON BYRD,

       Plaintiffs-Appellants,

v.

ANTONIO VASQUEZ and
DOMINIC VASQUEZ,

       Defendants-Appellees.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
David P. Reeb, District Judge

Mike Bello
Clovis, NM

for Appellants

Mark Sweetman
Clovis, NM

for Appellees

                                        OPINION

KENNEDY, Judge.

{1}     Ora Lee Harris and Lorandon Byrd (Plaintiffs) appeal the district court’s order
granting Antonio Vasquez’s and Dominic Vasquez’s (Defendants) motion for summary
judgment. The sole issue on appeal is whether a debtor responsible for a mechanic’s lien
against a car, who is not its owner, must be given notice before enforcement of a mechanic’s
lien under NMSA 1978, Section 48-3-13(A) (1989). We affirm and conclude that notice
need not be given to the debtor and that notice to the owner is sufficient.


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I.     BACKGROUND

{2}    Prior to the enforcement of Defendants’ mechanic’s lien, Byrd owned a 1986 Nissan
Maxima. The car is a motor vehicle within the meaning of NMSA 1978, Section 48-3-21(B)
(1965). When Byrd was incarcerated, she gave possession and use of the car to Harris, her
aunt. Byrd’s ownership of the car remained unchanged. Subsequently, in April 2007, Harris
contacted Vasquez, owner and operator of Vasquez Welding and Tire, to make repairs to the
car.

{3}      Vasquez completed the repair work on April 18, 2007, and presented Harris with a
bill for $1207.83. On April 14, 2008, Harris made a $500 payment for the repairs, leaving
an outstanding balance of $707.83. Harris made no further payments on the bill. The car
remained in Vasquez’s possession.

{4}     In November 2008, Vasquez, through his agent, Amber Workheiser of Workheiser
Enterprises, Inc., initiated proceedings to enforce his mechanic’s lien under Section 48-3-13.
Workheiser conducted a vehicle history. The State of New Mexico Vehicle History report
showed that Byrd was the registered owner. Byrd’s address of record coincided with the
home address of Harris. Workheiser sent notice to Byrd, via certified mail, stating the
amount of indebtedness and that if the amount was not paid within ten days, the car may be
advertised and sold under Section 48-3-13. Notice was sent to Byrd at Harris’s address on
November 25, 2008, and delivery was attempted on November 28 and December 3, 2008.
Harris allowed the certified mail package to go unclaimed and be returned undelivered to
Workheiser on December 12, 2008. At no time was written notice addressed to Harris.

{5}     Workheiser scheduled the car auction for January 8, 2009, at 8:00 a.m., and, in
compliance with NMSA 1978, Section 48-3-14(A) (1955), posted six notices around the city.
Workheiser conducted the sale at the appointed date and time. Besides Vasquez, no other
bidders appeared for the sale. Vasquez bid the amount of his lien and took ownership of the
car. In February 2009, Harris saw Antonio Vasquez, Dominic Vasquez’s nephew, driving
the car around Clovis. Harris approached him for return of the car, and he declined.

{6}     In September 2009, Harris and Byrd filed a pro se civil complaint against Defendants
in magistrate court, seeking return of the 1986 Nissan Maxima or $5000 in payment for the
car. Harris and Byrd argued that the lien enforcement and sale was improper because
Vasquez never provided notice to Harris, who possessed the car, and such notice was
required under the statute because Harris was the debtor. In December 2009, the court found
that notice was sufficient and awarded Defendants attorney fees.

{7}     Plaintiffs subsequently appealed to the district court for trial de novo. The parties
filed cross-motions for summary judgment. Plaintiffs argued that lien enforcement was
improper because Vasquez failed to follow Section 48-3-13(A) by not providing notice to
Harris, who had made all contractual agreements with him, provided partial payment, and
was the debtor for the repair work. Defendants argued that Harris was not the car’s owner

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and, therefore, was not entitled to notice and that adequate notice was served on Byrd. In
November 2010, the district court denied Plaintiffs’ motion for summary judgment and
granted Defendants’ counter-motion for summary judgment on the ground that Harris was
not the legal owner of the car and, therefore, was not entitled to notice. Plaintiffs now
appeal.

II.    DISCUSSION

{8}    At issue is whether the district court properly granted summary judgment in
concluding that Harris was not entitled to notice and that notice was properly made upon
Byrd under Section 48-3-13(A). The parties agree that the lien arose under Section 48-3-1.
The argument revolves solely around whether the notice required for lien enforcement was
proper under Section 48-3-13.

{9}     “On appeal from the grant of summary judgment, we ordinarily review the whole
record in the light most favorable to the party opposing summary judgment to determine if
there is any evidence that places a genuine issue of material fact in dispute.” City of
Albuquerque v. BPLW Architects & Eng’rs, Inc., 2009-NMCA-081, ¶ 7, 146 N.M. 717, 213
P.3d 1146. “However, if no material issues of fact are in dispute and an appeal presents only
a question of law, we apply de novo review and are not required to view the appeal in the
light most favorable to the party opposing summary judgment.” Id.

{10} Interpretation of a statute is a question of law, which an appellate court reviews de
novo. See Morgan Keegan Mortg. Co. v. Candelaria, 1998-NMCA-008, ¶ 5, 124 N.M. 405,
951 P.2d 1066. When presented with a question of statutory construction, we observe
several general principles. High Ridge Hinkle Joint Venture v. City of Albuquerque, 1998-
NMSC-050, ¶ 5, 126 N.M. 413, 970 P.2d 599. First, we read several sections of a statute
together, so that all parts are given effect. Methola v. Cnty. of Eddy, 95 N.M. 329, 333, 622
P.2d 234, 238 (1980). Second, we give the words of the statute their plain meaning unless
the Legislature indicates a different intent. State ex rel. Klineline v. Blackhurst, 106 N.M.
732, 735, 749 P.2d 1111, 1114 (1988), superceded in statute as stated in Cordova v.
Taxation & Revenue, 2005-NMCA-009, 136 N.M. 713, 104 P.3d 1104. Further, we will not
read into a statute language that is not there, particularly, if it makes sense as written.
Burroughs v. Bd. of Cnty. Comm’rs, 88 N.M. 303, 306, 540 P.2d 233, 236 (1975). Finally,
the purpose of statutory construction is to give effect to the intent of the Legislature. Key
v. Chrysler Motors Corp., 121 N.M. 764, 768-69, 918 P.2d 350, 354-55 (1996), aff’d in part,
rev’d in part on other grounds by 2000-NMSC-010, 128 N.M. 739, 998 P.2d 575.

{11} Section 48-3-13(A) provides a mechanic’s lienholder an optional, self-enforcement
mechanism and states, in relevant part, that the lien claimant must “serve the person against
whom the lien is sought to be enforced with a written notice or forward to the last known
address of the person, by certified or registered mail, return receipt requested, a written
statement, setting forth an itemized statement of the amount of the indebtedness.” (Emphasis
added.)

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{12} This notice requirement in Subsection A applies to the self-enforcement of and sales
associated with, inter alia, mechanic’s and artisan’s liens on motor vehicles. NMSA 1978,
Sections 48-3-1 to -3-20. Such liens are used to secure payment for work on the chattels
involved. See Section 48-3-1(A) (stating that a mechanic has “a lien upon such motor
vehicle . . . for repairing the same”); see also Section 48-2-1 (defining a lien as “a charge
imposed upon specific property, by which it is made security for the performance of an act”).
Specifically for liens against motor vehicles, Subsection C provides extended time periods
for the notice requirement. The statute explains that, with regard to motor vehicles, the
notice period is specifically “for the purpose of establishing ownership . . . so that [owners
and other lienholders] may be given notice of the sale.” § 48-3-13(C).

{13} We conclude that the vehicle’s owner is clearly the person against whom a
mechanic’s lien for repairs to a motor vehicle is sought to be enforced, as the time periods
for notice are specially provided for the purpose of establishing ownership. As such, notice
is sufficient when served upon the owner. We also note that statutes requiring notice for
perfection of a mechanic’s lien have traditionally required notice to the owner. See
generally Maurice T. Brunner, Who is the Owner Within Mechanic’s Lien Statute Requiring
Notice of Claim, 76 A.L.R.3d 605, § 3 (1977) (stating that while the definition of “owner”
may vary, only owners within the meaning of the statute are entitled to notice); High Ridge
Hinkle, 1998-NMSC-050, ¶ 5; cf. Windsor Mills v. Richard B. Smith, Inc., 77 Cal. Rptr. 300,
302 (Ct. App. 1969) (stating that the purpose of written notice is to advise the owner that his
property may be subjected to a lien arising out of a transaction to which he may not be a
party); Wand Corp. v. San Gabriel Valley Lumber Co., 46 Cal. Rptr. 486, 488 (Ct. App.
1965) (explaining that the purpose of written notice to the owner is to advise him that his
property may be subjected to a lien, even though the owner may not be party to the
underlying transaction).

{14} To the extent that Plaintiffs contend that the phrase “the person against whom the lien
is sought to be enforced” refers to the debtor, we disagree. As stated above, we read the
statute as a whole, and Subsections B and C indicate that notice is solely required to the
owner. Moreover, “[t]he age-old Latin phrase[,] inclusio unius est exclusio alterius[,] is
applicable here. It means the inclusion of one thing is the exclusion of the other. The
[L]egislature did not see fit to include it in the statute, therefore[,] it is excluded.” State v.
Nick R., 2009-NMSC-050, ¶ 23, 147 N.M. 182, 218 P.3d 868 (internal quotation marks and
citation omitted). We note that, although the term “debtor” is used in other statutes within
Article 3 of NMSA 1978, Sections 48-3-15 and -26, it is not used in the specific statute at
issue in this case. Rather, the term “owner” is explicitly used in Section 48-3-13 with
reference to the notice periods for motor vehicles. We conclude that because the Legislature
did not see fit to include “debtor” in the statute with reference to motor vehicles, it is
excluded in our construction of this statute. Had the Legislature intended to require the
provision of notice to a contracting party, who is not the property owner, it would not have
specified that the notice periods were for the purposes of determining the identity of the
owner. See Section 48-3-13(C).


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{15} Plaintiffs also argue that summary judgment in favor of Defendants was
inappropriate because, as an agent of Byrd, Harris deserved notice. Assuming without
deciding that Harris was Byrd’s agent, Harris intentionally deprived herself of notice by
allowing the certified mail package addressed to her principal—Byrd—to go unclaimed.
The notice was delivered directly to Harris’s home, and she chose not to claim it. If Harris
was Byrd’s agent within this transaction, she should have accepted notice on behalf of her
principal, rather than allowing the package to go unclaimed. See generally Restatement
(Second) of Agency § 272 (1958); Madsen v. Scott, 1999-NMSC-042, ¶ 8, 128 N.M. 255,
992 P.2d 268 (“An agent is a person who, by agreement with another called the principal,
represents the principal in dealings with third persons or transacts some other business,
manages some affair[,] or does some service for the principal, with or without
compensation.” (internal quotation marks and citation omitted)). Such a “head-in-the-sand”
position is unavailing. Harris cannot benefit from intentionally avoiding receipt of notice.

{16} Plaintiffs argue that, even if notice to the vehicle owner is required under Subsections
B and C of the statute, notice is additionally required to the debtor under Subsection A.
Plaintiffs misconstrue the “in addition to” language of Subsection B. Subsection B states
that “in addition to the ten-day notice of the debt under this section and the twenty-day
notice of sale under Section 48-3-14 . . . , the motor vehicle shall be held.” § 48-3-13(B).
A plain reading of Subsection B evinces that, with regard to vehicles, a lienholder must hold
the vehicle for an additional period of time between notice to the owner and sale of the
vehicle. The quoted language in Subsection B refers to the period between notice and sale,
not to whom notice must be given. Moreover, the statute does not indicate that notice is to
be given to any other parties.

{17} Last, Plaintiffs argue that Vasquez had actual knowledge of Byrd’s incarceration and
willfully served notice at the incorrect address. Plaintiff fails to direct this Court to any point
in the record which indicates that his knowledge of her incarceration was argued below or
otherwise preserved. “[O]n appeal, the party must specifically point out where, in the
record, the party invoked the court’s ruling on the issue. Absent that citation to the record
or any obvious preservation, we will not consider the issue.” Crutchfield v. N.M. Dep’t of
Taxation & Revenue, 2005-NMCA-022, ¶ 14, 137 N.M. 26, 106 P.3d 1273. Furthermore,
upon our review of the record, we conclude that this argument was not preserved, and we
therefore do not review it. Woolwine v. Furr’s, Inc., 106 N.M. 492, 496, 745 P.2d 717, 721
(Ct. App. 1987) (stating that “[t]o preserve an issue for review on appeal, it must appear that
[the] appellant fairly invoked a ruling of the trial court on the same grounds argued in the
appellate court”).

III.    CONCLUSION

{18} Based on the foregoing analysis, we conclude that, with respect to motor vehicles,
Section 48-3-13 solely requires that written notice be served on the vehicle owner.
Therefore, we affirm the district court.


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{19}   IT IS SO ORDERED.

                                          ____________________________________
                                          RODERICK T. KENNEDY, Judge

WE CONCUR:

____________________________________
JAMES J. WECHSLER, Judge

____________________________________
MICHAEL E. VIGIL, Judge

Topic Index for Harris v. Vasquez, No. 31,006

CIVIL PROCEDURE
Notice
Summary Judgment

PROPERTY
Bankers and Agents

REMEDIES
Liens

STATUTES
Interpretation
Rules of Construction




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