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

 2 WALTER GOULD,

 3          Plaintiff-Appellee,

 4 v.                                                            NO. 32,493

 5 PENNIE GOULD,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY
 8 Sheri A. Raphaelson, District Judge

 9 Jane B. Yohalem
10 Santa Fe, NM

11 for Appellee

12 Pamela Emsden
13 Santa Fe, NM

14 for Appellant

15                                 MEMORANDUM OPINION

16 ZAMORA, Judge.

17   {1}    Pennie Gould (Defendant) appeals from a district court judgment in favor of

18 Walter Gould (Plaintiff) for unpaid rent, a utility bill, damages, and attorney fees
 1 pursuant to the New Mexico Uniform Owner-Resident Relations Act (the Act),

 2 NMSA 1978, §§ 47-8-1 to -52 (1975, as amended through 2007). We consider

 3 whether the parties’ conduct and their agreement relating to family business and

 4 accommodations is one governed by or enforceable under the provisions of the Act.

 5 We conclude that the Act does not apply under the circumstances of this case and

 6 reverse.

 7 I.      BACKGROUND

 8   {2}   Plaintiff is in the business of owning and renting residential and storage

 9 properties. Defendant and Jay Gould (Husband) lived at the residence currently in

10 dispute (the residence), located in Espanola, during their marriage. Plaintiff,

11 Husband’s father, owns the residence. Defendant and Husband have two children, and

12 Plaintiff is their grandfather. Defendant and Husband divorced in 2005 and entered

13 into a marital settlement agreement (the MSA). The MSA provided in relevant part

14 that Defendant could have “use and possession” of the residence for three years from

15 the date of entry of the final decree. Under the MSA, if Defendant was asked to vacate

16 the residence, then Husband was required to pay her $700 per month in spousal

17 support for the remainder of the three-year period. If Defendant vacated the premises

18 of her own accord prior to the end of the three-year period, then Husband would not


                                             2
 1 be required to pay the $700 per month. The MSA is silent on any requirement that

 2 Defendant pay rent to Plaintiff in exchange for living in the residence for the three

 3 years.

 4   {3}    Defendant lived at the residence with the children rent-free for the three years

 5 provided for in the MSA. Defendant testified that she asked Plaintiff if she could stay

 6 longer than the three years and that Plaintiff said she could stay until she “could get

 7 back on her feet.” Defendant also testified that she took that to mean that she could

 8 continue to live at the residence rent-free. Defendant moved out of the residence about

 9 thirteen months after the three-year term set forth in the MSA.

10   {4}    The residence is about 200 yards from Plaintiff’s office, Defendant saw Plaintiff

11 on a regular basis, and Defendant went to Plaintiff’s office to collect Husband’s child

12 support payments. While Defendant lived in the residence for thirteen months after

13 the three years provided for in the MSA, Plaintiff and Defendant never discussed

14 payment of rent or entering into a lease for the residence. Defendant testified that

15 Plaintiff never discussed her paying rent for living in the residence for the extra

16 thirteen months, nor did Plaintiff or Plaintiff’s property manager ever seek to collect

17 rent from Defendant during the thirteen months she resided there after the three-year

18 period. Plaintiff testified that there was no “direct” rental agreement between


                                                3
 1 Defendant and him for the residence, and did not offer any other testimony that

 2 conflicted with Defendant’s testimony on these matters.

 3   {5}   After Defendant moved out, she met with the New Mexico Child Support

 4 Enforcement Division (CSED) to discuss having Husband’s child support payments

 5 automatically deposited into her account because she had a new job in Los Alamos

 6 and was moving there. About two months after Defendant moved out of the residence,

 7 CSED sent Husband a letter about child support arrearages. Soon thereafter,

 8 Defendant received notice from Plaintiff for nonpayment of rent liability under the

 9 Act. Plaintiff petitioned the magistrate court for restitution pursuant to the Act. A trial

10 in magistrate court resulted in a judgment in favor of Plaintiff. Defendant appealed to

11 the district court. The district court held a bench trial (de novo) and entered a

12 judgment in favor of Plaintiff.

13   {6}   Defendant filed requested findings of fact and conclusions of law untimely, and

14 Plaintiff did not submit any requested findings of fact or conclusions of law; therefore,

15 the district court was not required by Rule 1-052 NMRA to enter written findings and

16 conclusions. Accordingly, our review is based on the district court’s oral ruling.




                                                4
 1 II.     DISCUSSION

 2   {7}   On appeal, Defendant challenges the district court’s judgment in favor of

 3 Plaintiff, questioning the applicability of the Act to the circumstances of this case

 4 based on her assertion that there is no rental agreement between Plaintiff and her to

 5 which the Act applies.

 6 A.      Standard of Review

 7   {8}   Whether the Act applies to the parties’ arrangement in this case is a question of

 8 statutory interpretation, which we review de novo. United Rentals Nw., Inc. v. Yearout

 9 Mech., Inc., 2010-NMSC-030, ¶ 7, 148 N.M. 426, 237 P.3d 728. “When construing

10 statutes, our guiding principle is to determine and give effect to legislative intent.” OS

11 Farms, Inc. v. N.M. Am. Water Co., 2009-NMCA-113, ¶ 19, 147 N.M. 221, 218 P.3d

12 1269 (internal quotation marks and citation omitted). To discern the Legislature’s

13 intent, we “look first to the plain language of the statute, giving the words their

14 ordinary meaning, unless the Legislature indicates a different one was intended.”

15 Marbob Energy Corp. v. N.M. Oil Conservation Comm’n, 2009-NMSC-013, ¶ 9, 146

16 N.M. 24, 206 P.3d 135 (internal quotation marks and citation omitted). Statutory

17 language that is clear and unambiguous must be given effect. Trinosky v. Johnstone,

18 2011-NMCA-045, ¶ 11, 149 N.M. 605, 252 P.3d 829.


                                               5
 1 B.       Applicability of the Act

 2   {9}    The Act “applies to, regulates[,] and determines rights, obligations[,] and

 3 remedies [of owners and residents] under a rental agreement . . . for a [residence]

 4 located within this state.” Section 47-8-8 (emphasis added). A “rental agreement,” as

 5 defined by the Act, is an agreement “between an owner and resident . . . embodying

 6 the terms and conditions concerning the use and occupancy of a dwelling unit or

 7 premises[.]” Section 47-8-3(P).

 8   {10}   The district court determined that the MSA, though not a written lease

 9 agreement between Plaintiff and Defendant, constituted a “rental agreement” under

10 the Act, which set out the terms and conditions of occupancy. The district court found

11 that Defendant properly occupied the residence for the three years set out in the MSA,

12 in exchange for forgoing $700 in spousal support, and thereafter Defendant was a

13 hold-over tenant.

14   {11}   The district court concluded the “rental agreement” between Plaintiff and

15 Defendant was initially the written MSA and became a non-written agreement once

16 Defendant held-over. Apparently relying on Section 47-8-15(A), the district court

17 determined that as a hold-over tenant, Defendant was required to pay rent equal to the

18 “fair market value.” See id. (“In the absence of [a rental] agreement, the resident shall


                                               6
 1 pay as rent the fair rental value for the use of the premises and occupancy of the

 2 dwelling unit.”). The district court calculated the fair rental value for the residence at

 3 $700 per month, pursuant to the MSA’s paragraph on spousal support.

 4   {12}   Defendant argues that the district court erred in finding that the Act applied to

 5 the circumstances of this case because there was no express rental agreement between

 6 Plaintiff and her. Specifically, Defendant argues that the district court erred in

 7 construing the MSA as a rental agreement because Plaintiff was not a party to the

 8 agreement. We agree.

 9 1.       The MSA Is Not a Rental Agreement

10   {13}   Marriage is a civil contract between spouses. NMSA 1978, § 40-1-1 (1915);

11 Merrill v. Davis, 1983-NMSC-070, ¶ 10, 100 N.M. 552, 673 P.2d 1285. When

12 spouses execute a marital settlement agreement during a divorce, that agreement is

13 also a contract between the spouses. Cortez v. Cortez, 2009-NMSC-008, ¶ 1, 145

14 N.M. 642, 203 P.3d 857 (“Marital settlement agreements are contracts executed by

15 divorcing spouses setting forth the present and future obligations of the parties.”). As

16 such, the rules of contract law generally apply to marital settlement agreements. See

17 Herrera v. Herrera, 1999-NMCA-034, ¶ 9, 126 N.M. 705, 974 P.2d 675 (holding that

18 marital settlement agreements are contracts, subject to contract law). It is a well settled


                                                7
 1 principle of contract law that “[o]ne who is not a party to a contract cannot maintain

 2 a suit upon it.” Bank of New York v. Romero, 2014-NMSC-007, ¶ 17, 320 P.3d 1

 3 (internal quotation marks and citation omitted).

 4   {14}   In this case, Plaintiff was not a party to the marriage contract between Husband

 5 and Defendant, and likewise, he was not a party to the MSA. However, Plaintiff

 6 argues, that the terms of the MSA can be transferred to him because, in executing the

 7 MSA and agreeing to the terms and conditions for Defendant’s occupancy of the

 8 residence, Husband was actually acting as Plaintiff’s agent. We are not persuaded.

 9   {15}   “‘An agent is a person who, by agreement with another called the principal,

10 represents the principal in dealings with third persons or transacts some other

11 business, manages some affair or does some service for the principal, with or without

12 compensation.’” Madsen v. Scott, 1999-NMSC-042, ¶ 8, 128 N.M. 255, 992 P.2d 268

13 (quoting UJI 13-401 NMRA). The agency relationship “may be either expressed or

14 implied by a course of conduct showing an intention that the relationship exists.” UJI

15 13-401. Where, as here, no express agency agreement has been introduced, proof of

16 such a relationship can be found by examining the conduct of the parties. See Bozza

17 v. Gen. Adjustment Bureau, 1985-NMCA-068, ¶ 13, 103 N.M. 200, 704 P.2d 454

18 (“Whether an agency exists is ordinarily a question of fact which may be established


                                                8
 1 by direct or circumstantial evidence.”); see also State v. DeBaca, 1971-NMCA-092,

 2 ¶ 9, 82 N.M. 727, 487 P.2d 155 (stating that proof of implied agency “is generally

 3 found in the acts and conduct of the parties as distinguished from the introduction of

 4 a contract, written or oral, establishing the relationship”).

 5   {16}   The legal relationship of agency can be created where “the principal has in

 6 some manner indicated that the agent is to act for him, and that the agent so acts or

 7 agrees to act on his behalf and subject to his control.” Totah Drilling Co. v. Abraham,

 8 1958-NMSC-102, ¶ 19, 64 N.M. 380, 328 P.2d 1083. A principal can vest his agent

 9 with actual or apparent authority. Romero v. Mervyn’s, 1989-NMSC-081, ¶¶ 11-12,

10 109 N.M. 249, 784 P.2d 992. “[A]ctual authority is determined in light of the

11 principal’s manifestations of consent to the agent, [and] apparent authority arises from

12 the principal’s manifestations to [a] third part[y.]” Id. ¶ 12 (internal quotation marks

13 and citation omitted). The existence of an agent’s authority is based on “words or acts

14 of the principal, and not the representations or acts of the agent.” Tercero v. Roman

15 Catholic Diocese, 2002-NMSC-018, ¶ 12, 132 N.M. 312, 48 P.3d 50 (internal

16 quotation marks and citation omitted).

17   {17}   Plaintiff contends that his conduct manifested his intention that Husband act as

18 his agent in two ways: (1) Plaintiff allowed his son to reside in and control the


                                                9
 1 residence for many years, and (2) Plaintiff acted in conformance with the MSA for the

 2 three-year term set forth in the MSA. However, this conduct is insufficient to

 3 demonstrate that, at the time Husband executed the MSA, he did so as Plaintiff’s

 4 agent, creating a rental agreement between Plaintiff and Defendant. To the contrary,

 5 our review of the record reveals that the MSA is an express agreement between

 6 Husband and Defendant which makes no mention of Plaintiff nor indicates the

 7 existence of an agency relationship or obligation to Plaintiff. Moreover, the record

 8 does not reveal any specific words or acts by Plaintiff that would demonstrate an

 9 intention to create an agency relationship.

10   {18}   Because Plaintiff was not a party to the MSA, and agency principles cannot be

11 used to transfer the terms of the MSA to Plaintiff, we conclude that the district court

12 erred in construing the MSA as a rental agreement and that the arrangement between

13 the parties is not a “rental agreement” as defined by Section 47-8-3(P) of the Act. As

14 a result, we hold that the Act does not apply to the circumstances of this case, and we

15 reverse the district court’s judgment awarding Plaintiff unpaid rent, damages, unpaid

16 utilities, and attorney fees pursuant to the Act.




                                              10
 1 2.       The District Court’s Equitable Ruling

 2   {19}   The district court, sua sponte, raised the issue of equity. Based on its ruling

 3 regarding the MSA as a rental agreement and relying on Section 47-8-4 of the Act,

 4 which states that “[u]nless displaced by the provisions of the . . . Act, the principles

 5 of law and equity . . . supplement its provisions,” the court did not find Defendant’s

 6 testimony regarding an express oral agreement for rent-free occupancy credible and

 7 concluded that equity demanded payment of rent in the amount of $700 per month for

 8 the thirteen-month “hold-over period.” To the extent that the district court’s ruling

 9 related to equity was made pursuant to and in the context of the Act, we have held that

10 the Act does not apply here and we reverse the court’s equitable ruling on that basis.

11   {20}   To the extent that Plaintiff argues that an equitable ruling by the district court,

12 outside the context of the Act, should stand, we disagree. A district court has “broad

13 discretion” and “great flexibility” in its decisions regarding equitable remedies. See

14 In re Estate of Duran, 2003-NMSC-008, ¶ 35, 133 N.M. 553, 66 P.3d 326. However,

15 “[s]uch discretion is not a mental discretion to be exercised as one pleases, but is a

16 legal discretion to be exercised in conformity with the law.” Cont’l Potash, Inc. v.

17 Freeport-McMoran, Inc., 1993-NMSC-039, ¶ 26, 115 N.M. 690, 858 P.2d 66, holding

18 limited on other grounds by Davis v. Devon Energy Corp., 2009-NMSC-048, ¶¶ 34-


                                                11
 1 35, 147 N.M. 157, 218 P.3d 75. “Generally, the [district] court may not grant

 2 judgment for relief which is neither requested by the pleadings nor within the theory

 3 on which the case was tried.” Credit Inst. v. Veterinary Nutrition Corp., 2003-NMCA-

 4 010, ¶ 19, 133 N.M. 248, 62 P.3d 339 (internal quotation marks and citation omitted).

 5 “The theory of pleadings is to give the parties fair notice of the claims and defenses

 6 against them, and the grounds upon which they are based.” Schmitz v. Smentowski,

 7 1990-NMSC-002, ¶ 9, 109 N.M. 386, 785 P.2d 726.

 8   {21}   Here, Plaintiff did not request equitable relief in his complaint, did not argue

 9 equity at trial, and did not seek to amend his complaint to conform to the evidence.

10 Based on our review of the record, equity did not come up until closing arguments

11 before the district court. As a result, the facts, as alleged in the pleadings and as

12 presented at trial did not put Defendant on notice that equitable theories were included

13 in those alleged. For these reasons, we cannot affirm the district court’s ruling related

14 to equity.

15 III.     CONCLUSION

16   {22}   Based on the forgoing, we reverse the judgment of the district court.




                                               12
1   {23}   IT IS SO ORDERED.



2                                     ___________________________
3                                     M. MONICA ZAMORA, Judge


4 WE CONCUR:


5 ____________________________
6 JONATHAN B. SUTIN, Judge


7 ____________________________
8 LINDA M. VANZI, Judge




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