Rule 11 sanction upheld by NM Court of Appeals

New Mexico Rule of Civil Procedure 1-011 serves the same function as Federal Rule of Procedure 11 — to deter baseless filings. Such sanctions are rarely imposed, so the Court of Appeals’ recent decision in Bernier v. Bernier makes for an interesting read.

A highly simplified version of the facts is that a brother and sister had a dispute about some corporate stock, and agreed to place the stock certificate in the custody of their uncle, whom they both trusted, until the dispute was resolved. At some point, the brother unilaterally demanded that the uncle turn the stock certificate over to him, and sued the uncle when he declined to do so, in disregard of the prior agreement.

Judge Sutin’s opinion held that the sanction was supported by the evidence, but here are some aspects of his opinion that I think are more interesting:

1.  In both this case (at ¶ 15), and  his recent decision in Los Vigiles Land Grant v. Rebar Haygood Ranch, LLC, Judge Sutin has disapproved of the practice of some district court judges to adopt verbatim a party’s proposed findings of fact and conclusions of law. The opinion states that although the Court of Appeals applies “generally very deferential” review, “our deference wanes when the district court adopts verbatim the prevailing party’s extensive requested findings of fact and requested conclusions of law in complex cases.” Just how much this deference “wanes” is not clear.

2.  The sanctioned brother claimed that it was improper for the uncle to move for Rule 1-011 sanctions at the end of the case, because he had not previously complained about the Rule 1-011 violations. The Court rejected this argument, noting that unlike Federal Rule 11, the New Mexico rule does not contain any “safe harbor” provision. (See ¶ 24).

3.  In several instances, the Court refused to review claims because the appellant’s brief did not contain specific cites to the record to identify the relevant evidence supporting a claim of error, or identify how and where the error was preserved. (See ¶¶ 36, 40, 46). While Rule of Appellate Procedure 12-213 already requires an appellant to include specific cites to the record, the Court of Appeals here is giving notice that it is not going to look for them if counsel does not include them. In the Seventh Circuit’s immortal words, “Judges are not like pigs, hunting for truffles buried in briefs.” United States v. Dunkel, 927 F.3d 955, 956 (7th Cir. 1991)).

Even if an appellate court had the time and inclination to look through the record to find out whether a claim was preserved, and was supported by actual evidence, the better practice is always to make things easier for the judges and clerks who will be reviewing your briefs by including clear and specific citations to the record.

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