Khalsa v. Puri

                                                         Office of the
                                                             Director                           New Mexico
                                                                                                Compilation
                                                          2023.03.06                            Commission
                                                     '00'07- 10:12:54
           IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: October 24, 2022

No. A-1-CA-39074

SOPURKH KAUR KHALSA, SHAKTI
PARWHA KAUR KHALSA, and EK
ONG KAR KAUR KHALSA, Trustees
of the YOGI BHAJAN ADMINISTRATIVE
TRUST,

       Plaintiffs-Appellees,

v.

INDERJIT KAUR PURI,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Raymond Z. Ortiz, District Judge

Sanders & Westbrook, PC
Maureen A. Sanders
Albuquerque, NM

for Appellees

The Soni Law Firm
Surjit P. Soni
Pasadena, CA

The Bowles Law Firm
Jason Bowles
Albuquerque, NM

for Appellant

                                         OPINION

BOGARDUS, Judge.

{1}   Inderjit Kaur Puri (Bibiji) appeals the district court’s order granting the Trustees of
the Yogi Bhajan Administrative Trust’s (the Trustees) motion for sanctions based on
Bibiji’s failure to comply with a court order to produce documents in aid of execution of
an attorney fees judgment. Bibiji argues (1) the Trustees improperly served a subpoena,
rendering the subpoena invalid; (2) the district court lacked authority to order discovery
in aid of enforcement of a judgment in light of the Trustees’ failure to issue or properly
serve a document request pursuant to Rule 1-034 NMRA; (3) the district court erred by
ordering Bibiji to produce privileged documents; and (4) the district court’s sanctions
award constituted an abuse of discretion and violated due process. We affirm.

BACKGROUND

{2}      This appeal arises from the Trustees’ attempt to collect attorney fees after a
judgment for $718,720.63 in fees was entered in their favor in 2014. It is Bibiji’s fifth
appeal to this Court in the course of this litigation, which is now more than fourteen
years old. The Trustees sued Bibiji seeking a declaratory judgment that Bibiji was not
entitled to any distributions from the trust. The district court dismissed the Trustees’
complaint, but the case proceeded to trial on Bibiji’s counterclaims. The Trustees
prevailed, and the district court ordered Bibiji to pay the Trustees’ attorney fees and
costs. This Court affirmed. See Khalsa v. Puri, 

, 

. Bibiji filed an appeal specific to the award of attorney fees, and this Court affirmed
that award in a separate opinion. See Khalsa v. Puri, No. 33,622, mem. op. ¶¶ 11-12
(N.M. Ct. App. Apr. 14, 2015) (nonprecedential). Although the Trustees garnished an
arbitration award in 2017 to partially satisfy the attorney fees judgment, and the priority
of the garnishment was affirmed on appeal, see Khalsa v. Puri, A-1-CA-36701, mem.
op. ¶¶ 1, 18-19 (N.M. Ct. App. Feb. 2, 2021) (nonprecedential), Bibiji has yet to pay the
Trustees any of the attorney fees judgment that remains. In its 2017 order denying
Bibiji’s motion to stay enforcement of the Trustees’ priority garnishment, the district
court noted that Bibiji’s debt under the attorney fees judgment, with interest, exceeded
$1 million.

{3}    Further discussion of facts necessary for our analysis will be discussed below.

DISCUSSION

I.     The District Court Did Not Err in Entering the Discovery Order

{4}    Seeking information about Bibiji’s financial ability to pay the attorney fees
judgment, in March 2015 the Trustees filed a request for a Rule 1-069(A) NMRA
debtor’s examination of Bibiji, to which they attached a copy of the subpoena and a list
of documents Bibiji was directed to bring to the examination. The Trustees requested a
setting, and the subpoena was issued. The Trustees then filed a notice of Rule 1-069
debtor’s examination duces tecum that included the same list of requested documents,
which was served on Bibiji’s attorney of record through Odyssey on May 20, 2015. That
same day the Trustees’ process server delivered the subpoena for a Rule 1-069(A)
debtor’s examination duces tecum to Bibiji’s attorney of record. Attached to the
subpoena was the list of requested documents. Bibiji moved to quash the subpoena and
vacate the Rule 1-069 hearing, and for a protective order. In June 2015 the district court
held a hearing on the motion and issued an order (the discovery order) concluding that
service of the subpoena through Bibiji’s attorney of record was effective pursuant to
Rule 1-089(D) NMRA and directing Bibiji to produce certain documents requested by
the Trustees.

{5}     Bibiji argues that a subpoena issued pursuant to Rule 1-069(A) must be
personally served and that she was not properly served because the Trustees served
the subpoena on her attorney. Bibiji thus contends the service was ineffective. As a
result, Bibiji argues, the district court lacked authority to enter the discovery order,
pointing to the Trustees’ failure to otherwise issue or properly serve a Rule 1-034
document request. We disagree.

{6}     Bibiji’s argument requires us to interpret the rules of civil procedure, a matter we
review de novo. Becenti v. Becenti, 

, 

, 

.
“[W]e apply the same canons of interpretation [to our rules of civil procedures] that we
use when interpreting statutes.” Deutsche Bank Nat’l Tr. Co. v. Valerio, 2021-NMCA-
035, ¶ 16, 

. Thus, “[w]e approach the interpretation of rules . . . by seeking
to determine the underlying intent.” State v. Miller, 

, 

, 

; see also Grisham v. Romero, 

, 

(“In construing the language of a [rule], our goal and guiding principle is to give effect to
the intent of the [drafters].”). “The primary indicator of . . . intent is the plain language of
the [rule].” Lion’s Gate Water v. D’Antonio, 

, 

, 

. And yet, “courts must exercise caution in applying the plain meaning rule.”
State ex rel. Helman v. Gallegos, 

, ¶ 23, 

, 

.
In interpreting the language of a rule, we consider the thought behind the language and
not merely the specific words chosen. See State v. Thompson, 

, ¶ 17,

; State v. Off. of Pub. Def. ex rel. Muqqddin, 

, 

. “[Rules] are enacted as a whole, and consequently each section or part
should be construed in connection with every other part or section, giving effect to each,
and each provision is to be reconciled in a manner that is consistent and sensible so as
to produce a harmonious whole.” Lion’s Gate Water, 

 (internal
quotation marks and citation omitted). In construing a rule, we consider its purpose in
conjunction with other rules. See In re Michael L., 

, 

,

.

{7}    In arguing that service of the subpoena duces tecum on her attorney was
ineffective, Bibiji relies on the language of Rule 1-069 and Rule 1-045 NMRA (2009), 1
which provides that when a judgment debtor is subpoenaed to appear at a debtor’s
examination, see Rule 1-069(A), “[s]ervice of a subpoena upon a person named therein
shall be made by delivering a copy thereof to such person.” Rule 1-045(B)(2). The
Trustees respond by pointing to other rules which, they argue, indicate that service of a
subpoena duces tecum on the attorney of record of a party to ongoing litigation, as
occurred here, is permissible. We agree with the Trustees.


1Unless otherwise noted, all citations to Rule 1-045 in this opinion are to the 2009 amendment, which
was the version applicable when the subpoena at issue was served.
{8}     Construing Rule 1-069 in conjunction with other rules and in light of the rules’
purpose, we conclude that deeming ineffective the service of a subpoena duces tecum
on the attorney of record of a party to ongoing litigation 2 would be contrary to the rules’
“underlying intent.” See Miller, 

. To begin, Rule 1-005 NMRA
establishes an intent that the attorney of a party to ongoing litigation receive service of
all pleadings, discovery requests, and other documents and notices. Rule 1-005(A)
provides, in relevant part:

        Except as otherwise provided in these rules, . . . every pleading
        subsequent to the original complaint . . ., every paper relating to discovery
        required to be served upon a party, unless the court otherwise orders, . . .
        and every written notice, appearance, . . . and similar paper shall be
        served upon each of the parties.

{9}     The rule further provides that “[w]henever under these rules service is required or
permitted to be made upon a party represented by an attorney, the service shall be
made upon the attorney.” 

 (emphases added); accord Rule 1-045(B)(2)(b) (“Prior to
or at the same time as service of any subpoena commanding production of documents .
. . before trial, notice shall be served on each party in the manner prescribed by Rule 1-
005.” (emphases added)). Accordingly, the rules indicate that the Trustees appropriately
served the notice of Rule 1-069 debtor’s examination duces tecum on Bibiji’s attorney of
record, pursuant to Rule 1-005.

{10} The rules similarly demonstrate an underlying intent to permit service of a
subpoena duces tecum on the attorney of party to ongoing litigation. Rule 1-030(B)(5)
NMRA provides, “The notice to a party deponent may be accompanied by a request
made in compliance with Rule 1-034 . . . for the production of documents.” Rule 1-034,
in turn, provides that such a request for documents “may . . . be served . . . on any . . .
party with or after service of the summons and complaint on that party,” Rule 1-034(B),
and distinguishes between parties and nonparties. See Rule 1-034(C) (“A person not a
party to the action may be compelled to produce documents and things or to submit to
an inspection as provided in Rule 1-045.”). Thus, service of a deposition notice
accompanied by a request for documents—in essence a subpoena duces tecum—is
permitted to be made, pursuant to Rule 1-030(B)(5) and Rule 1-005(B), on the attorney
representing the deposed party.

{11} Similarly, Rule 1-089(D), upon which the district court relied to determine that the
Trustees had effected valid service of the subpoena duces tecum on Bibiji’s attorney,
demonstrates an underlying intent that a party’s attorney of record may remain subject
to service in cases in which a judgment subject to appeal has been entered but the

2The parties litigated various issues in the district court between the date the attorney fees judgment was
entered in February 2014, and the date the notice of Rule 1-069 debtor’s examination duces tecum and
subpoena duces tecum were served in May 2015. We also note that, one month before the Trustees
effected service of the subpoena duces tecum, Bibiji’s attorney filed a notice of unavailability in which he
requested that no hearing “in this matter” be set for the next several weeks due to other engagements.
The notice indicates that Bibiji’s attorney considered the matter an active case such that it was necessary
to inform the court of his temporary unavailability for hearings.
attorney remains engaged in related litigation. See Rule 1-089(D) (“Attorneys of record
shall continue to be subject to service for ninety (90) days after entry of final
judgment.”). Construing Rule 1-089(D) in conjunction with rules relating to service of
discovery requests on a party is also consistent with Rule 1-069(B), which provides that
a judgment creditor may, in certain circumstances, obtain discovery from any person “in
any manner provided in these rules.”

{12} Moreover, our construction of these rules is consistent with our directive to
construe the rules to achieve their purpose, that is, “to secure the just, speedy and
inexpensive determination of every action.” Rule 1-001(A) NMRA. Rule 1-001 is
“intended to allow for the liberal construction of the rules.” H-B-S P’ship v. Aircoa Hosp.
Servs., Inc., 

, 

, 

; see id. ¶ 17 (noting
that “New Mexico appellate opinions have recognized . . . the flexibility of the Rules of
Civil Procedure,” allowing courts “the flexibility to address ambiguity in a rule that would
allow alternative outcomes”). This Court has recognized that the “prime purpose of the
new rules is to eliminate delays resulting from reliance upon pure technicalities and
generally to streamline and simplify procedure so that the merits of the case might be
reached.” Id. ¶ 17 (internal quotation marks and citation omitted).

{13} Construing Rule 1-069 to permit service of a subpoena duces tecum on the
attorney of a party in ongoing litigation furthers this “prime purpose.” By contrast,
deeming such service inadequate in cases in which the attorney of a party involved in
ongoing litigation has received notice of a subpoena duces tecum and responded to it,
as occurred here, would lead to unnecessary delay resulting from reliance upon a
technicality, frustrating the district court’s ability to reach the merits of the case. Service
of a subpoena duces tecum on the attorney of a party in these circumstances is
generally sufficient, we think, to “ensure receipt, so that notice will be provided to the
recipient, and enforcement of the subpoena will be consistent with the requirements of
due process.” 9 James Wm. Moore, et al., Moore’s Federal Practice § 45.21[1] (Lexis
2022) (stating the “apparent purpose” of the language of Rule 45 of the Federal Rules of
Civil Procedure calling for “delivering” a copy of a subpoena to the person named, but
noting that “[r]equiring personal service of a subpoena . . . seems unduly restrictive”).
Permitting such service is thus consistent with the purpose of the rules.

{14} Accordingly, we conclude that service of the Trustees’ subpoena duces tecum to
Bibiji through her attorney of record was effective, and therefore valid. Having
determined that the discovery order was based on a valid subpoena, we conclude that
the district court did not err in entering the discovery order in enforcement thereof.

{15} Even so, however, if we were to conclude that serving Bibiji’s attorney of record
was improper, Bibiji cannot complain about the resulting discovery order, having invited
the remedies provided by this order, as we further explain below. See Chris L. v.
Vanessa O., 

, 

 (“Invited error occurs where a party
has contributed, at least in part, to perceived shortcomings in a [district] court’s ruling,
and, as a result, the party should hardly be heard to complain about those shortcomings
on appeal.” (alteration, omission, internal quotation marks, and citation omitted)).
{16} Following service, Bibiji moved to quash the subpoena and vacate the Rule 1-
069(A) hearing, and for a protective order. The motion states, “Bibiji construes [the
notice of the debtor’s examination] and request for documents as a request for
production of documents, to which answers and objections are not due until June 19,
2015. Alternatively, Bibiji asks for a protective order rescheduling the hearing date and
limiting the documents required to be produced.” The motion was based in part on
representations regarding Bibiji’s medical condition, which her attorney claimed
prohibited her from traveling, and raised detailed objections to the documents requested
by the Trustees.

{17} At the motion hearing, the district court indefinitely quashed the Trustees’
subpoena requiring Bibiji’s appearance at a Rule l-069(A) debtor’s examination because
of her medical condition. The district court also reviewed the document request list
attached to the subpoena and the deposition notice, significantly narrowed the
document request, and instructed Bibiji that she would have thirty days from the entry of
the discovery order to comply. The district court then entered the discovery order, which
granted Bibiji’s request to quash the subpoena compelling her testimony, found that the
Trustees’ document requests, taken as a whole, to be overly broad and burdensome in
some respects, ordered those requests limited to certain documents described in the
order, and provided that “Bibiji shall produce to the Trustees[] [those documents] within
thirty days of entry of th[e] [o]rder.”

{18} In sum, Bibiji received the remedies sought by her motion: “[Q]uash the
[s]ubpoena and vacate the Rule 1-069 hearing” or “limit[] the scope of documents to be
produced.” Bibiji’s motion to quash, in essence, asked the district court to treat the
documents as a Rule 1-034 matter, and the district court followed its lead. Accordingly,
even if we were to accept Bibiji’s argument that the district court erred in entering the
discovery order because of an invalid subpoena, any error was invited.

{19} Finally, to the extent Bibiji contends the entry of the discovery order violated her
due process rights based on lack of proper service and an opportunity to respond
pursuant to Rule 1-034, we disagree. As discussed, service of the subpoena duces
tecum was proper under the circumstance of this case. Bibiji’s attorney also
acknowledged that he received notice of the hearing addressing the Trustees’ request
for documents and had the opportunity to appear. In advance of the discovery order,
Bibiji raised detailed objections by motion to the documents requested, and the district
court’s discovery order ultimately took Bibiji’s objections into account, narrowing the
Trustees’ document request. Accordingly, entry of the discovery order did not violate
Bibiji’s due process rights. See Sandia v. Rivera, 

, 

,

 (“Generally, due process requires notice and hearing before deprivation.”
(citing Mathews v. Eldridge, 

 (1976)).

II.   The District Court Did Not Err in Ordering Bibiji to Produce Federal Tax
      Returns
{20} The discovery order directed Bibiji to disclose, among other documents, certain
federal tax returns. Bibiji argues the district court erred in ordering her to produce
income tax returns, contending that such returns are absolutely privileged and pointing
to Rule 11-502(A) NMRA and state and federal statutes providing for the confidentiality
of tax information.

{21} The authorities cited by Bibiji, however, do not support the claim that federal tax
returns are absolutely privileged. See Breen v. State Tax’n & Revenue Dep’t, 2012-
NMCA-101, ¶ 24, 

 (“Rule 11-502 explicitly makes the privilege dependent
on whether the relevant statutes that require the return or report to be made also
provide for a privilege to refuse disclosure.”); Commodity Futures Trading Comm’n v.
Collins, 

 (7th Cir. 1993) (stating that 

, which
provides that tax returns and return information shall be confidential, “does not block
access, through pretrial discovery or otherwise, to copies of tax returns in the
possession of litigants; all it prevents is the IRS’s sharing tax returns with other
government agencies”). Moreover, although this Court addressed the privilege against
disclosure of certain tax information in Breen, Breen recognized that a taxpayer may
waive that privilege. See 

.

{22} Therefore, even if we were to assume for the sake of argument that Bibiji’s
income tax returns are privileged, Bibiji waived the privilege by placing her tax liability at
issue in litigation related to the attorney fees judgment. See Pub. Serv. Co. of N.M. v.
Lyons, 

, ¶ 15, 

, 

 (“A person who places
privileged matters ‘at-issue’ in the litigation can be said to have implicitly consented to
disclosure.”). Specifically, Bibiji cited tax liabilities as a reason she did not have
sufficient funds to post an appeal bond to secure the attorney fees judgment. In doing
so, Bibiji sought to limit her liability for the attorney fees judgment by relying on tax
debts, thereby waiving the privilege. Cf. id. ¶ 22 (recognizing waiver of the attorneyclient privilege where a party “seeks to limit its liability by describing that advice and by
asserting that he [or she] relied on that advice” (internal quotation marks and citation
omitted)). Accordingly, the district court did not err in ordering Bibiji to produce certain
federal tax returns.

III.   The District Court’s Sanctions Award Did Not Constitute an Abuse of
       Discretion or Violate Due Process

{23} The Discovery Order entered in June 2015 gave Bibiji thirty days to comply. The
district court held a status conference in October 2015, and in January 2016 the
Trustees moved for sanctions and for an order to show cause. Following briefing and a
day-long evidentiary hearing held in October 2019, the district court granted the
Trustees’ motion for sanctions, ordering Bibiji and her attorney to pay, jointly and
severally, (1) the Trustees’ fees and costs incurred as a result of Bibiji’s failure to
comply with the discovery order; and (2) $1,000 per day until Bibiji produced the
documents called for by the discovery order and certain additional information, with
payment to be made after all rights of appellate review had been exhausted. Bibiji
argues the district court erred in awarding sanctions, contending that the award
constituted an abuse of discretion and violated the due process rights of her attorney
and herself.

A.     Abuse of Discretion

{24} The district court entered the $1,000 per-day sanction pursuant to Rule 1-037
NMRA and the court’s inherent power to enforce its orders. Bibiji argues the district
court abused its discretion by (1) failing to properly apply the legal standard under Rule
1-037, (2) exercising its inherent authority, and (3) sanctioning Bibiji and her attorney,
jointly and severally, in the amount of $1,000 per day until the relevant documents and
information were produced.

{25} “We review a [district] court’s decision to impose discovery sanctions under Rule
1-037(B)(2) for an abuse of discretion.” Lewis ex rel. Lewis v. Samson, 2001-NMSC-
035, ¶ 13, 

, 

; see also Weiss v. Thi of N.M. Valle Norte, LLC,

, 

 (stating that the district court’s imposition of
discovery sanctions based on its inherent power to control its proceedings is evaluated
for an abuse of discretion). Under this standard of review, “we will disturb the [district]
court’s ruling only when the [district] court’s decision is clearly untenable or contrary to
logic and reason.” Lewis, 

 (internal quotation marks and citation
omitted); see also State v. Candelaria, 

, 

, 

 (stating that, in reviewing a district court’s imposition of sanctions pursuant to
its inherent authority, the appellate court is “required to view the evidence, and its
inferences, in the light most favorable to the [lower] court’s decision”).

1.     Rule 1-037

{26} Bibiji first argues the district court abused its discretion by failing to properly apply
the legal standard under Rule 1-037. Bibiji argues Rule 1-037 sanctions are only
warranted when a party’s position in resisting discovery is not “substantially justified,”
citing Rule 1-037(D). Bibiji contends her conduct was substantially justified because
there was no proper service of the subpoena and the documents requested included
statutorily privileged income tax returns. We disagree.

{27} As an initial matter, Rule 1-037(B) rather than 1-037(D) applies here, where a
party has failed to comply with a discovery order issued by the district court. See
Sandoval v. Martinez, 

, ¶ 4, 

, 

 (stating that
Rule 1-037(B) “deals with sanctions, including dismissal and default, that the court may
impose for violation of discovery orders”). Rule 1-037(B)(2) provides that in such cases

       the court shall require the party failing to obey the order or the attorney
       advising that party or both to pay the reasonable expenses, including
       attorney[] fees, caused by the failure, unless the court finds that the failure
       was substantially justified or that other circumstances make an award of
       expenses unjust.
(Emphases added.)

{28} Here, the district court made no finding that Bibiji’s noncompliance was
substantially justified but instead found that “[g]ood cause has not been shown by
[Bibiji’s attorney] or Bibiji why they should not be sanctioned by the [district c]ourt for
their failure to comply with the [discovery] order.” Cf. Pierce v. Underwood, 

 (1988) (concluding that a statute which provides that “attorney[] fees shall be
awarded unless the court finds that the position of the United States was substantially
justified,” as opposed to simply “unless the position of the United States was
substantially justified” emphasizes “the fact that the determination is for the district court
to make, and thus suggests some deference to the district court upon appeal” (internal
quotations marks omitted and citation omitted)). In finding that Bibiji and her attorney
had not shown good cause, the district court’s sanctions order stated that neither Bibiji
nor her attorney had shown good cause for failing to petition the court to stay or
reconsider the discovery order, or post a bond, and noted that Bibiji and her attorney
had the ability to comply with the order at all relevant times but had not done so. In
addition, the discovery order provides that the responsive documents would be deemed
confidential, providing safeguards of this information’s privacy. Based on the foregoing,
we conclude the district court did not abuse its discretion in declining to find that Bibiji’s
failure to obey the discovery order was substantially justified. Accordingly, the district
court did not fail to properly apply the legal standard under Rule 1-037.

2.     The District Court’s Inherent Authority

{29} Bibiji next argues that the district court abused its discretion in exercising its
inherent authority. Bibiji contends that her actions were not undertaken in bad faith and
were not frivolous filings, but rather “were taken out of concern for protection of statutory
privileges from waiver by the production of inherently private information and because of
the Trustees’ failure to properly serve the subpoena.” We are unpersuaded.

{30} “We have long held that a court’s power is broader than merely the statutory
authority to impose sanctions to cover a prejudiced party’s costs when the offending
party has violated a rule or statute.” Weiss, 

, ¶ 22. Our Supreme Court
has thus recognized that “a court’s inherent authority extends to all conduct before that
court and encompasses orders intended and reasonably designed to regulate the
court’s docket, promote judicial efficiency, and deter frivolous filings.” State ex rel. N.M.
State Highway & Transp. Dep’t v. Baca, 

, ¶ 27, 

, 

. “In that vein, a court must be able to command the obedience of litigants and their
attorneys if it is to perform its judicial functions. In these circumstances, a court is
permitted to vindicate its judicial authority and impose sanctions.” Weiss, 2013-NMCA-
054, ¶ 22 (internal quotations marks and citations omitted); accord In re Jade G., 2001-
NMCA-058, ¶ 28, 

, 

 (“Under its inherent authority, a court may
sanction parties and attorneys to ensure compliance with the proceedings of the
court.”); Sanchez v. Borrego, 

, 

, 

(stating that sanctions can be imposed to “preserve the integrity of the judicial process
and the due process rights of the other litigants” (internal quotation marks and citation
omitted)).

{31} Although Bibiji argues she did not act in bad faith, she never sought a stay from
the district court in connection with the discovery order. In refusing to comply with the
discovery order, Bibiji thus engaged in conduct in direct defiance of the court’s authority.
Cf. N.M. Right to Choose/NARAL v. Johnson, 

, 

,

 (stating that “an award of attorney fees without a basis in a statute,
contractual provision, or court rule may be justified as an exercise of a court’s inherent
powers when litigants, their attorneys, or both have engaged in bad faith conduct before
the court or in direct defiance of the court’s authority” (emphases added) (internal
quotation marks and citation omitted)). Accordingly, the district court did not err in
exercising its inherent authority to impose sanctions to preserve the integrity of the
judicial process.

3.     Sanction Amount

{32} To the extent Bibiji argues the district court abused its discretion by sanctioning
her in the amount of $1,000 per day until Bibiji produced the relevant documents and
information, we cannot say the district court’s decision is clearly untenable or contrary to
logic and reason in light of the full record. Cf. Sandoval, 

, ¶ 23 (“We will
not reverse a dismissal under Rule 1-037 unless, after reviewing the full record and the
reasons the district court gave for its order, we are left with a definite and firm conviction
that the court below committed a clear error of judgment in the conclusion it reached
upon a weighing of the relevant factors.” (internal quotation marks and citation omitted)).
We explain.

{33} The district court’s sanctions order stems from the Trustees’ attempt to collect on
the attorney fees judgment entered in 2012 and awarded in the amount of $718,720.63
in 2014. In 2017 the district court noted that Bibiji’s debt under the judgment exceeded
$1 million. Bibiji has taken four previous appeals relating to the attorney fees judgment
or collection thereof, and Bibiji does not dispute that she has never posted an appeal
bond.

{34} After an evidentiary hearing on the Trustees’ sanctions motion at which the
district court heard testimony from Bibiji’s attorney, the district court issued its sanctions
order, which found no evidence that Bibiji was unable to pay the attorney fees judgment.
Instead, the court found it was clear from the evidence that Bibiji and her attorney had
the ability to comply with the discovery order at all relevant times but had not done so.
In addition, the sanctions order stated that neither Bibiji nor her attorney had shown
good cause for failing to petition the court to stay or reconsider the discovery order, or
post a bond. The district court thus concluded that Bibiji and her attorney had not shown
good cause for failing to comply with the discovery order.

{35} These findings and conclusions are supported by our full-record review and our
consideration of the totality of circumstances surrounding Bibiji’s failure to comply with
the June 2015 discovery order. See Medina v. Found. Rsrv. Ins. Co., 

,
¶ 8, 

, 

 (considering the full record and totality of the
circumstance surrounding discovery violations in reviewing the district court’s finding
that the plaintiff willfully failed to comply with his discovery obligations). As discussed, at
the October 2015 status conference held several months after the discovery order
deadline, the district court reminded Bibiji’s attorney that he was under a duty to comply
with the order and that his continuing failure to do so would be taken into consideration,
noting that he had not requested a stay of the order. In September 2017, more than two
years after the discovery order deadline, the district court observed that the facts and
procedural history relevant to this matter demonstrated an effort to evade the attorney
fees judgment and noted that, “[e]ver since [attorney] fees were originally awarded
against Bibiji, through her [attorney], she has claimed herself a pauper, despite the
evidence to the contrary shown [at] trial.” In light of Bibiji’s defiance of the district court’s
authority, for which the court found no good cause, we cannot say the district court’s
daily sanction was clearly untenable or contrary to logic and reason. Accordingly, this
sanction did not constitute an abuse of discretion.

B.     Due Process

{36} Finally, Bibiji argues the district court’s sanction of $1,000 per day violates the
due process rights of herself and her attorney, contending that the sanction denies the
opportunity for judicial review and is not the minimum sanction necessary to coerce
compliance. Again, we are not persuaded by this argument.

{37} “We review questions of constitutional law and constitutional rights, such as due
process protections, de novo.” N.M. Bd. of Veterinary Med. v. Riegger, 2007-NMSC-
044, ¶ 27, 

, 

; see also State v. Ngo, 

,

, 

 (“Whether [a sanctioned party] was afforded procedural
due process is a question of law that we review de novo.”). Due process requires that a
person subject to a sanction receive, at a minimum, notice of the bases for the
threatened sanctions and an opportunity to defend against them. See In re Byrnes,

, 

, 

 (“[T]he minimal due process
requirements of a prior warning and an opportunity to defend must be strictly
maintained.”); see also Papatheofanis v. Allen, 

, 

,

 (“In cases of indirect civil contempt, due process requires that a party be
given notice of the charges.”); Doña Ana Sav. & Loan Ass’n, F.A. v. Mitchell, 1991-
NMCA-054, ¶¶ 13-14, 

, 

 (concluding that an attorney
sanctioned for violating Rule 1-011 NMRA was afforded due process where the district
court gave the attorney notice of the essential facts and an opportunity to be heard).

{38} Here, Bibiji received notice of the bases for the threatened sanction and had an
opportunity to defend against them. The Trustees’ motion for sanctions and order to
show cause explained that the basis for sanctioning Bibiji was her failure to comply with
the discovery order and proposed a $1,000 daily sanction until Bibiji complied with the
order and filed certain additional documents and information. Bibiji filed a memorandum
in opposition to the Trustees’ motion for an order to show cause and argued that no
sanctions were justified. The district court held an evidentiary hearing on the motion at
which it heard testimony from Bibiji’s attorney. The district court then granted the
Trustees’ request as set forth in the original January 2016 motion. Bibiji filed a motion
for reconsideration in which she argued against this sanction, which the district court
denied.

{39} Insofar as Bibiji argues that the district court’s $1,000 per-day sanction imposes a
chilling effect on a litigant’s due process right of judicial review of the sanction award,
we are likewise unpersuaded. Bibiji cites several federal cases in support of the
proposition that government action violates due process when the penalties for
disobedience are so enormous that they intimidate a potential challenger from
exercising his or her right of access to the courts. The cases Bibiji cites, however,
involved fines mandated by statute, which accrue as a matter of law rather than
sanctions awarded after—and based on—the district court’s consideration of briefing,
evidence, and testimony on the issue. Therefore, these cases are not controlling. See
Fernandez v. Farmers Ins. Co., 

, ¶ 15, 

, 

.
Absent citation to relevant authority and considering that she received notice of the
bases for the threatened sanctions and an opportunity to defend against them, Bibiji
was not denied the opportunity for judicial review.

{40} Finally, to the extent Bibiji contends the sanction was not the minimum sanction
necessary to coerce compliance, this argument is speculative. The district court granted
the Trustees’ request for a sanction of $1,000 per day—a request the Trustees set forth
in their motion for sanctions and order to show cause. Bibiji’s memorandum in
opposition to the motion argued that no sanctions were justified but did not discuss the
Trustees’ proposed amount. In her motion to reconsider, Bibiji argued the sanction was
too high but proposed no alternative and provided no evidence to support an alternative.
See Chan v. Montoya, 

, 

, 

 (“The mere
assertions and arguments of counsel are not evidence.” (internal quotation marks and
citation omitted)); cf. Marchman v. NCNB Tex. Nat. Bank, 

, ¶ 54, 

, 

 (recognizing that Fed. R. Civ. P. 37 “places the burden on the
disobedient party to avoid expenses by showing that his failure is justified or that special
circumstances make an award of expenses unjust” (internal quotation marks and
citation omitted)). Given our discussion above, we cannot say that the district court’s
sanction is more stern than reasonably necessary to preserve the integrity of the judicial
process. See United Nuclear Corp. v. Gen. Atomic Co., 

, ¶ 393, 

, 

 (“It is only where the sanction invoked is more stern than
reasonably necessary that a denial of due process results.” (alteration, internal
quotation marks, and citation omitted)). Accordingly, the district court’s daily sanction
did not violate due process.

CONCLUSION

{41}   For the foregoing reasons, we affirm.

{42}   IT IS SO ORDERED.
KRISTINA BOGARDUS, Judge

WE CONCUR:

GERALD E. BACA, Judge

MICHAEL D. BUSTAMANTE, Judge, retired, sitting by designation