The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is sele cted for publication by the Court, it is assigned a vendor

- neutral citation by the Chief Clerk for compliance with Rule 23

- 112 NMRA , authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 Opinion Number: _____________ 2 Filing Date: July 25 , 2023 3
No. A

- 1

- CA

- 39622 4 FOUR HILLS PARK GROUP, LLC 5 d/b/a FOUR HILLS PRIVATE 6 COMMUNITY, 7
Plaintiff

- Appellee, 8

v. 9
LEOPOLO MASABARAKIZA, 10
Defendant

- Appellant. 11
APPEAL FROM THE METROPOLITAN COURT OF BERNALILLO 12 COUNTY 13 Jason M. Jaramillo, Metropolitan Court Judge 14 Vance, Chavez & Associates, LLC 15 James A. Chavez 16 Albuquerque, NM 17
for Appellee 18 New Mexico Legal Aid, Inc. 19 Thomas Prettyman 20 Albuquerque, NM 21 for Appellant 22OPINION 1
DUFFY , Judge. 2

{1} In this appeal, we interpret two sections of the Mobile Home Park Act, NMSA 3 1978, §§ 47

- 10

- 1 to

- 23 (1983, as amended through 2007), to determine what is 4 required when serving a notice of nonp ayment of rent on a mobile home park 5 resident. Defendant Leopolo Masabarakiza appeals from the metropolitan court’s 6 order granting restitution of the mobile home space to Plaintiff Four Hills Park 7 Group, LLC, as well as the court’s denial of Defendant’s tw o counterclaims. 8 Defendant argued below that Four Hills violated the requirements for serving notice 9
found in Section 47

- 10

- 3(B) when it posted a notice of nonpayment of rent on his 10 door but did not send a copy of the notice by certified mail. See id. (“If service is 11 made by posting the notice, a copy of the notice shall also be sent by certified mail 12 to the mobile home tenant.”). T he metropolitan court held that the Mobile Home 13
Park Act does not require certified mailing of a nonpayment notice because the Act 14
contains a specific and separate provision concerning nonpayment of rent, Section 15
47

- 10

- 6, which allows for notice by service or posting. 16

{2 } On appeal, Defendant renews his argument. We hold that a notice of 17 nonpayment of rent is subject to the servi ce requirements set forth in Section 47

- 10

- 18 3(B). Consequently, Four Hills was required to send the notice of nonpayment by 19 certified mail in addition to posting. Because it did not do so, we reverse the 202 judgment in favor of Four Hills on its petition for t ermination of tenancy. We affirm 1
the denial of Defendant’s two counterclaims. 2
BACKGROUND 3

{3 } Four Hills posted a notice of nonpayment of rent on the front door of 4
Defendant’s mobile home. The notice was titled , “ Three Day Notice of Non

5 Payment of Rent ” and stated tha t Defendant owed a total of $397.86. The notice 6 stated, “If the T otal Amount Due shown above is not paid within three (3) days from 7 the date of delivery set out below, the rental agreement is terminated.” There were 8

two boxes to check how the notice was served, either “personally delivered to 9 Resident” or “posted/taped to front door of home,” and the latter was checked. 10

{4 } After the time for curing the overdue rent had passed, Four Hills filed a 11 petition in the metropolitan court seeking to evict Defendant. Three days after that , 12 Defendant gave Four Hills a money order for $600. Four Hills accepted the money 13 order but declined to deposit it and proceeded with its petition. Before trial, 14
Defendant filed an answer and asserted as an affirmative defense that service of the 15
three

- day notice was insufficient. Defendant also asserted two counterclaims based 16 on allegations that Four Hills had been overcharging Defendant. Following a bench 17 trial, the metropolitan court issued a final judgment in favor of Four Hills and denied 18 Defendant’s counterclaims. This appeal followed. 193 DISCUSSION 1
I. Service of the Notice of Nonpayment Was Inadequate 2

{5 } At issue is whether the service requirements for notices of termination in 3
Section 47

- 10

- 3(B) of the Mobile Hom e Park Act apply to notices of nonpayment 4
of rent under Section 47

- 10

- 6. Resolution of this issue requires us to construe these 5 provisions of the Mobile Home Park Act. We review questions of statutory 6
construction de novo. State v. Rivera , 2004

- NMSC

- 001, ¶ 9, 134 N.M. 768, 82 P.3d 7
939 . “The chief aim of statutory construction is to give effect to the intent of the 8 [L] egislature.” Green Valley Mobile Home Park v. Mulvaney , 1996

- NMSC

- 037, 9 ¶ 11, 121 N.M. 817, 918 P.2d 1317 (internal quotation marks and citatio n omitted). 10 “We start with the language itself, giving effect to its plain meaning where 11 appropriate.” Benny v. Moberg Welding , 2007

- NMCA

- 124, ¶ 5, 142 N.M. 501, 167 12
P.3d 949. “ W hen construing individual statutory sections contained within an act, 13

courts e xamine the overall structure of the act and consider each section’s function 14 within the comprehensive legislative scheme.” Britton v. Off. of Att’y Gen. , 201 9

- 15
NMCA

- 002, ¶ 27, 433 P.3d 320. 16

{6 } We begin with the statutory sections at issue. Section 47

- 10

- 3 (A) states that 17 “no tenancy in a mobile home park shall be terminated until a notice to quit has been 18 served upon the mobile home resident.” Subsection (B) lays out the service 19 requirements for a notice to quit: 204 The notice to quit shall be served by delivering the notice to the mobile 1 home tenant personally or by posting the notice at the main entrance of 2 the mobile home. If service is made by posting the notice, a copy of the 3 notice shall also be sent by certified mail to the mobile home tenant, 4 retu rn receipt requested. The date of a posting shall be included on the 5 posted notice and on the copy mailed to the mobile home tenant and 6 shall constitute the effective date of the notice. 7
Section 47

- 10

- 3(B). Under the plain terms of this section, if a land lord chooses to 8 post the notice to quit, they must also send the notice by certified mail to the tenant. 9
Id. 10

{7 } In addition to setting out the requirements for proper service, Section 47

- 10

- 3 11
identifies wha t the notice must state, including the reason fo r the termination of the 12
tenancy. See § 47

- 10

- 3(A)(5). The reasons justifying termination are found in other 13
sections of the Mobile Home Park Act

. See Mulvaney , 1996

- NMSC

- 037, ¶ 7

. In 14
Section 47

- 10

- 5, the Legislature identified a list of reasons why a tenancy “shall” be 15 terminated. Failure to pay rent is not included in Section 47

- 10

- 5. Nonpayment is , 16 instead, addressed specifically in Section 47

- 10

- 6, which provides another 17 circumstance in which a lease “may” be terminated: 18 Any tenancy or other estate at will or lease in a mobile home park 19 may be terminated upon the landlord’s written notice to the tenant 20 requiring, in the alternative, payment of rent and utility charges or the 21 removal of the tenant’s unit from the premises, within a period of not 22 less than three days after the date notice is served or posted, for failure 23 to pay rent when due. 24
Id. 255 {8 } Despite the permissive language in Section 47

- 10

- 6 that the tenancy “may” 1 be terminated if the overdue rent is not cured, landlords typically do not all ow a 2 tenant to continue living on the premises without paying rent; consequently, a 3 tenant’s failure to pay the overdue amount within the time specified in the notice 4 places the tenant in jeopardy of having the lease terminated. The Mobile Home Park 5
Act do es not require the landlord to send a separate notice to quit in the event the 6
overdue rent is not time l y cured , and therefore, a notice of nonpayment under Section 7
47

- 10

- 6 functions as a notice of termination, i.e., a notice to quit , when the past

- due 8

ren t is not paid . As such, a notice of nonpayment falls under the umbrella of Section 9
47

- 10

- 3, which by its plain language applies broadly to all notices that terminate a 10 tenancy in a mobile home park. See § 47

- 10

- 3(A) (stating that “no tenancy in a 11
mobile ho me park shall be terminated until a notice to quit has been served upon the 12 mobile home resident”). 13

{9 } This construction conforms with the historical understanding that a notice of 14 nonpayment is a notice to quit. See El Dorado Inv. Co. v. Burrus , 1923

- NMSC

- 050, 15 ¶ 8, 28 N.M. 551, 215 P. 819 (noting that before an action of forcible entry or 16 unlawful detainer may be maintained, “ three days ’ notice to quit must be given in 17 writing to the defendant ” by statute “ to provide a short time within which a 18 defaulting tenant might pay past

- due rent and thereby defeat or obviate a forfeiture 19
of his lease ” (internal quotation marks omitted) ); N.M. Motor Corp. v. Bliss , 1921

- 206 NMSC

- 044, ¶ 11, 27 N.M. 304, 201 P. 105 (noting that a three

- day notice to quit 1 upon nonpayment of rent “was evidently designed to take the place of the common

2 law demand, and to provide a short time within which the tenant might pay the rent, 3
and thus save the forfeiture ”). 4

{1 0 } Likewise, this construction is als o supported by the form approved by our 5 Supreme Court for use as a three

- day notice of nonpayment of rent under the Mobile 6
Home Park Act. See Rule 4

- 921 NMRA (Form 4

- 921) (providing the civil form 7 approved for notice of nonpayment of rent) . The form contai ns two boxes to indicate 8
how notice was served: 9
Service of notice: 10 [ ] personally delivered to resident 11 [ ] posted on the mobile home on ______________ (date) and mailed 12 certified mail, return receipt requested 13
Id. (use note omitted). F orm 4

- 921 also has a use note regarding service that states: 14
2. Section 47

- 10

- 3

. . . provides that service of a notice to quit shall 15 be served by delivering the notice to the tenant personally or by posting 16 the notice at the main e ntrance of the mobile home and sending a copy 17 to the tenant by certified mail, return receipt requested. If this notice is 18 personally delivered to the resident, mailing or posting is not required. 19 The date of posting must be included on the posted notice a nd on the 20 copy mailed to the mobile home tenant. 217 Id. use note 2. On its face, Form 4

- 921 and its use notes indicate that our Supreme 1 Court also views a notice of nonpayment as a notice to quit, subject to the service 2 requirements set forth in Section 47

- 1 0

- 3(B). 1 3

{1 1 } Four Hills’ contrary argument is that a notice of nonpayment is not governed 4 by Section 47

- 10

- 3 because Section 47

- 10

- 6 is a separate provision with its own 5 service requirements. This is not the case. Section 47

- 10

- 6 states in relevant part that 6 the tenancy may be terminated if the tenant does not pay the overdue amount “ within 7 a period of not less than three days after the date notice is served or posted, for failure 8 to pay rent when due. ” Four Hills suggests that this language indicates th at the 9 landlord may “serve or post” the notice without any requirement to mail the notice. 10 In context, however, Section 47

- 10

- 6 does not specify how service may be made, 11 but rather, when the three

- day clock to cure begins to run. 12

{1 2 } We also note that Fo ur Hills’ construction would effectively result in different 13 service requirements depending on the reason for the termination

— service of a 14 notice of nonpayment could be accomplished by posting alone , whereas a notice to 15 quit for any of the other reasons sp ecified in the Mobile Home Park Act would 16 require posting plus certified mailing. To accept such a distinction, we would have 17

1 Four Hills states that it used Form 4

- 921 in this case , and the notice posted on Defendant’s door states that it was “Civil Form 4

- 921.” However, the form used by Four Hills had been modified from Form 4

- 921 to omit the language “ and mailed certified mail, return receipt requested ” from the checkbox for service by posting.8 to conclude that our Legislature intended to provide less notice in situations where 1 termination is based on nonpayment of rent th an in other scenarios that result in 2 termination of a tenancy. On the contrary, we believe this construction would 3 frustrate the Legislature’s intent of providing mobile home park tenants with 4 additional protections given their “inherent vulnerability as a person who owns a 5
home but leases the land on which that home is located

. ” Mulvaney , 1996

- NMSC

6 037, ¶ 12 (internal quotation marks and citation omitted). As our Supreme Court 7 recognized, “[t]he difficulty in relocating one’s home is not to be underestimat ed, 8 especially since many of the residents of mobile home parks can ill afford the cost 9 of moving the mobile home.” Id. 10

{1 3 } Four Hills otherwise argues that Section 47

- 10

- 6 of the Mobile Home Park 11
Act is analogous to the section addressing nonpayment of rent in the Uniform 12
Owner

- Resident Relations Act (UORRA), NMSA 1978, Section 47

- 8

- 13(D) (1995). 13
See Mulvaney , 1996

- NMSC

- 037, ¶ 6 (stating that the Mobile Home Park Act 14 supplements the UORRA); see also § 47

- 10

- 18 (stating that “ the provisions of the 15 [ UORRA ] shall apply to mobile home park owners and residents ” unless they 16 directly conflict with a provision of the Mobile Home Part Act)

. Four Hills notes 17
that Section 47

- 8

- 13(D) of the UORRA allows an owner to “deliver, mail or post the 18
three

- day non - payment notice,” i.e., that mailing is not required if the notice is 19 posted. However, the UORRA directly conflicts with the service requirements set 209 forth in Section 47

- 10

- 3(B) of the Mobile Home Park Act. As our Supreme Court 1 has previously noted, “ [T ] he Mobile Home Park Act prevails over the [UORRA] 2 when the provisions of the two acts conflict. ” Mulvaney , 1996

- NMSC

- 037, ¶ 8 3 (citing Section 47

- 10

- 18). 4

{1 4 } Finally, Four Hills argues that Defendant had actual notice and therefore, 5 “[t]he goal of the no tice delivery requirements has been met.” In support, Four Hills 6 notes that “[p]ursuant to the [U]ORRA, notice is accomplished when the party 7 intended to be put on notice has actual notice of the matter.” See § 47

- 8

- 13(A)(1), 8 (2) (stating that a person has notice of a fact “if he has actual knowledge of it [or] he 9 has received a notice or notification of it”). However, the same statutory provision 10 goes on to say that “[n]otwithstanding any other provisions of this section, notice to 11 a resident for nonpaymen t of rent shall be effective only when [it complies with the 12 service requirements specified by statute].” Section 47

- 8

- 13(D). Accordingly, the 13 UORRA does not support Four Hill’s position that actual notice will suffice in the 14 absence of proper service. 15

{1 5 } What is more, our Supreme Court has previously determined that a landlord 16 must strictly comply with the requirements of Section 47

- 10

- 3 for a notice of 17 termination to be effective, even if the tenant has actual notice. See Mulvaney , 1996

- 18
NMSC

- 037, ¶¶ 9

- 1 3. While Mulvaney was concerned with a notice that failed to 19 state the reason for the termination of the tenancy, the policy reasons that animated 2010 the Court’s conclusion that strict compliance is required apply equally to service of 1 the notice. To give for ce to a notice where a landlord has provided less service than 2 required by the Mobile Home Park Act would fail to “provide the special protection 3 against unjustified eviction which is expressed by the clear language of Section [] 4
47

- 10

- 3

. . . for the benefit of inherently vulnerable mobile home tenants. ” 5 Mulvaney , 1996

- NMSC

- 037, ¶ 13. As in Mulvaney , we conclude that a landlord 6 must strictly comply with Section 47

- 10

- 3(B) of the Mobile Home Park Act for the 7 notice of nonpayment to be effective. 8

{1 6 } I t is undisputed in this case that Four Hills did not comply with the service 9 requirements in Section 47

- 10

- 3(B) because it posted the notice but did not also send 10 a copy of the notice by certified mail to Defendant. We therefore reverse the 11 judgment in fav or of Four Hills on its petition for termination of tenancy. 12
II
. Defendant Has Not Shown Error in the Trial Court’s Denial of His 13 Counterclaims 14

{1 7 } Defendant asserted two counterclaims in the metropolitan court, one seeking 15 a civil penalty for unlawful utility charges under Section 47

- 10

- 23 , and another for 16 violation of the Unfair Practices Act, NMSA 1978, § 57

- 12

- 2(D)(15) (2019) based 17 on allegedly false statements made in connection with Four Hills’ attempt to collect 18 a debt. On appeal, Defendant genera lly argues that the metropolitan court erred in 19 denying both counterclaims. However, Defendant’s briefing contains no more than 20
a bald claim that he had been charged unlawful fees

. Defendant has not offered any 2111 citation to the record demonstrating what evi dence was offered in support of his 1 counterclaims and no argument or legal authority demonstrating why Defendant 2 believes the metropolitan court erred in light of the evidence presented at trial. See 3 Farmers, Inc. v. Dal Mach. & Fabricating, Inc. , 1990

- NMS C

- 100, ¶ 8, 111 N.M. 6, 4 800 P.2d 1063 (stating that the burden is on the appellant to clearly demonstrate that 5 the trial court erred) ; State v. Aragon , 1999

- NMCA

- 060, ¶ 10, 127 N.M. 393, 981 6 P.2d 1211 (stating that there is a presumption of correctness in the rulings or 7 decisions of the trial court, and the party claiming error bears the burden of showing 8 such error). Defendant has not met his burden to demonstrate error on the part of the 9 metropolitan court. 10
CONCLUSION 11

{1 8 } We reverse the judgment in favor of Four Hills on its petition for termination 12 of tenancy and affirm judgment in favor of Four Hills on Defendant’s counterclaims. 13

{1 9 } IT IS SO ORDERED. 14

__________________________________ 15 MEGAN P. DUFFY , Judge 16
WE CONCUR: 17

_________________________________ 18 J. MILES HANISEE, Judge 19

_________________________________ 20 JACQUELINE R. MEDINA, Judge 21