Burke v. Wal-Mart

• Court: New Mexico Court of Appeals
• Decided: November 5, 2010
• Docket: 30,412
• Status: Unpublished

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date.

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

7 BILL BURKE and SHERRY BURKE,

8 Plaintiffs-Appellees,

9 v. NO. 30,412

10 WAL-MART STORES, INC., a foreign corporation 11 doing business in the State of New Mexico,

12 Defendant/Cross-Claimant/Third-Party Plaintiff-Appellant,

13 v.

14 BROWN JORDAN INTERNATIONAL, INC., 15 d/b/a Casual Living, a foreign corporation doing 16 business in the State of New Mexico,

17 Defendant/Cross-Defendant-Appellee,

18 v.

19 THE HARTFORD INSURANCE COMPANY, 20 a Connecticut insurance company doing business 21 in the State of New Mexico,

22 Third-Party Defendant-Appellee.

23 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 1 David P. Reeb, Jr., District Judge

2 Bill Burke and Sherry Burke 3 Albuquerque, NM 4 Pro se Appellants 5 Modrall, Sperling, Roehl, Harris & Sisk, P.A. 6 Alex C. Walker 7 Albuquerque, NM

8 for Appellee Wal-Mart Stores, Inc.

9 O’Brien & Ulibarri, P.C. 10 Daniel J. O’Brien 11 Candace J. Cavanaugh 12 Albuquerque, NM

13 for Appellee Brown Jordan International, Inc.

14 Riley & Shane, P.A. 15 Mark J. Riley 16 Kristin J. Dalton 17 Albuquerque, NM

18 for Appellee The Hartford Insurance Co.

19 MEMORANDUM OPINION

20 CASTILLO, Judge.

21 Plaintiffs are appealing, pro se, from a district court order denying their motion

22 to set aside an order dismissing their complaint with prejudice pursuant to Rule 1-

23 041(E)(1) NMRA. We issued a calendar notice proposing to affirm. Plaintiffs have

24 responded with a timely memorandum in opposition. We affirm.

2 1 Plaintiffs continue to challenge the merits of the district court’s order

2 dismissing their complaint with prejudice. The joint motion to dismiss [RP 258] was

3 filed pursuant to Rule 1-041(E)(1), which provides that “[a]ny party may move to

4 dismiss the action, or any counterclaim, cross-claim or third-party claim with

5 prejudice if the party asserting the claim has failed to take any significant action to

6 bring such claim to trial or other final disposition within two (2) years from the filing

7 of such action or claim.” The district court “should determine, upon the basis of the

8 court record and the matters presented at the hearing, whether such action has been

9 timely taken by the plaintiff, . . . and, if not, whether he has been excusably prevented

10 from taking such action.” State ex rel. Reynolds v. Molybdenum Corp. of Am., 83

11 N.M. 690, 697, 496 P.2d 1086, 1093 (1972). The trial court has discretion to

12 determine a motion to dismiss for inactivity, and its decision will not be reversed

13 except for abuse of discretion. Id. “An abuse of discretion occurs when a ruling is

14 clearly contrary to the logical conclusions demanded by the facts and circumstances

15 of the case.” Sims v. Sims, 1996-NMSC-078, ¶ 65, 122 N.M. 618, 930 P.2d 153.

16 Plaintiffs’ complaint was filed on May 26, 2005. [RP 1] The district court

17 dismissed Plaintiffs’ complaint with prejudice on November 4, 2009. [RP 328]

18 Plaintiffs filed a motion to set aside the order on November 30, 2009. [RP 341] In

19 its order denying Plaintiffs’ motion, the district court set forth a chronology of events

3 1 that supports its dismissal order, as well as its refusal to set aside the order under Rule

2 1-060(B) NMRA. [RP 402] Specifically, the court noted that the incident occurred

3 nearly eight years earlier. [RP 403] Plaintiffs waited until the three year statute of

4 limitations was nearly expired before filing their complaint. [RP 403] Plaintiffs went

5 through six attorneys prior to the order denying the motion to set aside. [RP 404]

6 Although one of these attorneys had apparently engaged in ethical violations, this

7 amounted to a short period of time; otherwise there was no excusable neglect. [RP

8 403, ¶ 2; RP 404, ¶ 16] The district court based its decision on

9 the litany of attorneys hired to represent Plaintiffs, the probability that at 10 this point in the litigation, nearly eight years after the incident, that 11 witnesses would not be available for trial, that Plaintiffs’ witnesses and 12 doctors would likely need to be re-deposed given the passage of time 13 since the original depositions, and that there is no evidence in the record 14 to indicate anything other than intentional delay by Plaintiffs.

15 [RP 405]

16 Throughout their memorandum in opposition, Plaintiffs argue that the

17 dismissal should be set aside because they were not well-represented by their

18 attorneys. However, attorney neglect absent additional facts demonstrating

19 exceptional circumstances is not sufficient to invoke Rule 1-060(B)(6). See Padilla

20 v. Estate of Griego, 113 N.M. 660, 665, 830 P.2d 1348, 1353 (Ct. App. 1992). We

21 conclude that no exceptional circumstances appear here. To the extent that Plaintiffs

22 believe that they themselves had improperly filed the complaint in Curry County and

4 1 there was improper venue [MIO 9], the issue was waived. See Rule 1-012(H) NMRA;

2 Sundance Mech. & Util. Corp. v. Atlas, 109 N.M. 683, 690, 789 P.2d 1250, 1257

3 (1990) (stating that certain defenses such as lack of personal jurisdiction, improper

4 venue, insufficiency of process or service of process must be asserted at the outset of

5 an action or they are waived). In light of the abuse of discretion standard that governs

6 this appeal, we affirm the district court’s ruling.

7 IT IS SO ORDERED.

8 ___________________________________ 9 CELIA FOY CASTILLO, Judge

10 WE CONCUR:

11 __________________________________ 12 ROBERT E. ROBLES, Judge

13 __________________________________ 14 LINDA M. VANZI, Judge