Preview:

1 2 3 4 5 6

This memorandum opinion was not selected for publication in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 GRETCHEN NUNN, 8 9 v. 10 KATHLEEN NUNN, 11 Defendant-Appellant. Plaintiff-Appellee, No. 29,132

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Ted Baca, District Judge 14 Rocha de Gandara Law Firm 15 Jane Rocha de Gandara 16 Los Lunas, NM 17 for Appellee 18 James C. Ellis, P.C. 19 Lance Himmelberger 20 Albuquerque, NM 21 for Appellant

22 23 BUSTAMANTE, Judge.

MEMORANDUM OPINION

1

After a bench trial, the district court awarded an equitable lien of $40,000

2 against a landlord for her tenants' costs of installing a pool and some tiling to the 3 rental property during their tenancy. The district court also declined to enforce a 4 rental agreement between the parties. We reverse the award of the equitable lien and 5 affirm the finding that the contract was not enforceable. 6 I. 7 BACKGROUND In 1998 Kathleen Nunn (Mother) received an inheritance. Her accountant

8 advised her that it might be beneficial for her to invest some of this inheritance in a 9 rental property. Mother was not interested in being a landlord, but decided that she 10 would be willing to buy a house if she could rent it to family members. 11 Mother's son, Reid Nunn (Son), and his wife, Gretchen Nunn (Wife) agreed to

12 this arrangement. Wife testified that the arrangement would allow them to sell their 13 first home in a better market. Son testified that the arrangement would allow him to 14 live closer to his job, family, and friends. Son and Wife identified a house that they 15 would like to live in, and Mother used $40,000 of her inheritance as a down payment 16 to purchase the house. Mother took out a $130,000 mortgage on the property. Mother 17 was the sole owner of title to the property. 18 In 1998 Son and Wife moved out of their existing house and into Mother's new

19 property. Son and Wife began paying $950 per month in rent to Mother. At all times

2

1 Mother paid the mortgage, utilities, and property taxes on the property, reported rental 2 income, and took deductions for maintenance on her income taxes. 3 During the time that Son and Wife lived in the rental house, they made

4 numerous improvements. Although most were modest, two stand out. In 2000 the 5 couple spent $7,191 replacing tile throughout the house. They had not obtained 6 permission from Mother prior to installing the tile. In 2001 the couple spent $29,766 7 installing a pool at the house. Son testified that he asked for permission to install the 8 pool, which Mother initially denied. Son then testified that Mother eventually 9 acquiesced on the condition that she would not pay for the repairs, maintenance, or 10 anything associated with the pool. 11 In 2003 Mother desired to refinance her mortgage on the rental property. As

12 part of this process, the lender required a current copy of her rental agreement with 13 Son and Wife. Mother obtained a rental agreement from an office supply store, which 14 Son executed on behalf of Son and Wife in front of two witnesses. The rental 15 agreement provided that, in the event of a lawsuit, the prevailing party could recover 16 attorney fees. 17 In October 2006 Son moved out of the rental house. Then, in November, Son

18 filed for divorce. Shortly thereafter, on November 21, 2006, a termination of rental 19 agreement was delivered to Son and Wife. When Wife did not vacate the property,

3

1 Mother filed an eviction action in metropolitan court. That petition was dismissed 2 without prejudice when Wife filed the instant lawsuit in district court. After a short 3 bench trial, the district court awarded an equitable lien in favor of Wife and Son 4 against Mother in the approximate amount of the costs to Wife and Son of installing 5 the pool and the tile. The district court found that no initial written rental agreement 6 had been executed. The court further ordered that "[t]here was not a typical landlord7 tenant relationship between the parties, and therefore the [r]ental [a]greement executed 8 by [Son] is not enforceable." [RP 178] 9 II. 10 DISCUSSION Mother argues (1) that the district court erred in granting an equitable lien, and

11 (2) that the district court erred in not enforcing the rental agreement, an issue that 12 might allow her to obtain attorney fees if this Court reverses. We address each 13 argument in turn. 14 We note that our task is made more difficult because Wife did not file an

15 answer brief in this appeal. However, our rules do not require that an answer brief be 16 filed, as we may affirm on any ground. See Lozano v. GTE Lenkurt, Inc., 199617 NMCA-074,

Download CA29132.pdf

New Mexico Law