C Gallegos v. Hacienda Home

• Court: New Mexico Court of Appeals
• Decided: January 13, 2009
• Docket: 28,650
• Status: Unpublished

Opinion

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

2 CHARLIE GALLEGOS and 3 PATRICIA GALLEGOS,

4 Plaintiffs-Appellants,

5 v. NO. 28,650

6 HACIENDA HOME CENTER OF 7 LAS VEGAS and HACIENDA HOME 8 CENTERS, INC.,

9 Defendant-Appellee.

10 APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY 11 Abigail Aragon, District Judge

12 Montoya Law, Inc. 13 Dennis W. Montoya 14 Rio Rancho, NM

15 for Appellants

16 Cuddy, Kennedy, Albetta, Ives 17 & Archuleta-Staehlin 18 Evelyn Anne Peyton 19 Santa Fe, NM

20 for Appellee

21 MEMORANDUM OPINION

22 CASTILLO, Judge.

23 Plaintiffs appeal from an order denying their Rule 1-060(B)(4) NMRA motion 1 to set aside as void an order granting summary judgment in Defendant’s favor. In this

2 Court’s notice of proposed summary disposition, we proposed to affirm the denial of

3 Plaintiffs’ motion. Plaintiffs have timely responded with a memorandum in

4 opposition, and Defendant has timely responded with a memorandum in support. As

5 we are not persuaded by Plaintiffs’ arguments, we now affirm.

6 Plaintiffs’ docketing statement raised several issues relating to the proceedings

7 of their case, which ended when summary judgment was granted in favor of

8 Defendant. In its notice, this Court proposed to decline to address any of those issues,

9 as we believed that they were not properly before us. Instead, we proposed to review

10 only the issue of whether the district court erred in denying Plaintiffs’ Rule 1-

11 060(B)(4) motion. We noted that on appeal from the denial of such a motion, this

12 Court’s appellate review is limited to the question of whether the denial was erroneous

13 and that we will not review the merits of the underlying decision that is sought to be

14 reopened. See James v. Brumlop, 94 N.M. 291, 294, 609 P.2d 1247, 1250 (Ct. App.

15 1980).

16 As Plaintiffs made no arguments to this Court in their docketing statement that

17 the denial of their Rule 1-060(B)(4) motion was erroneous, this Court looked to the

18 arguments they made in the district court. In the district court, Plaintiffs argued that

19 the summary judgment order should be vacated because it was “void” and “a nullity”

2 1 because it had not been submitted to Plaintiffs’ counsel in accordance with Rule 1-

2 058(C) NMRA. [RP 481-83] As this Court had already rejected this argument in

3 Plaintiffs’ prior untimely appeal, see Gallegos v. Hacienda Home Ctr. of Las Vegas,

4 No. 27,471, slip op. at 1-3 (N.M. Ct. App. Apr. 26, 2007) (holding that the failure to

5 submit an order to counsel for approval in accordance with Rule 1-058(C) does not

6 render the order void) [see RP 511-13], we proposed to affirm.

7 In their memorandum in opposition, Plaintiffs assert that this Court’s proposed

8 disposition “cleverly restructures the issue” by focusing on the holding of this Court’s

9 prior slip opinion “to arrive at the desired outcome,” and they suggest that our prior

10 opinion did not hold that the district court’s failure to adhere to Rule 1-058(C) did not

11 render the summary judgment order void. [MIO 1-2] We disagree. In our prior

12 opinion, we stated that “[w]e know of no authority and Plaintiffs have cited us none

13 that makes an order entered without compliance with Rule 1-058 a nullity.” Gallegos,

14 No. 27,471, slip op. at 2. [See RP 512] We indicated that we would not consider

15 arguments that were not supported by authority. See id. [See RP 512] In Plaintiffs’

16 memorandum in opposition, they again fail to cite any authority for the proposition

17 that such an order is void and, accordingly, we assume that there is none. See In re

18 Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984) (indicating that

19 when a party cites no authority in support of a proposition, we may assume that none

3 1 exists); see also Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d

2 683 (“Our courts have repeatedly held that, in summary calendar cases, the burden is

3 on the party opposing the proposed disposition to clearly point out errors in fact or

4 law.”).

5 Plaintiffs suggest that this Court’s decision will somehow conflict with the

6 rulemaking authority of the New Mexico Supreme Court. [MIO 2-3] However, we

7 note that in addition to the fact that Plaintiffs have not established that the violation

8 of Rule 1-058(C) rendered the order void, they have not even established that any

9 error was reversible. The rules promulgated by our Supreme Court indicate that any

10 failure to adhere to Rule 1-058 is subject to a harmless error analysis, see Rule 1-061

11 NMRA, and Plaintiffs have not asserted that they were in any way prejudiced by not

12 having been permitted to review the order before it was signed. It appears that

13 Plaintiffs’ problem with the order is that they do not agree with the substance of the

14 district court’s ruling granting summary judgment—not that they disagree with the

15 form of the order. [RP 481-83]

16 As we conclude that the district court was correct in its determination that the

17 failure to adhere to Rule 1-058(C) did not render its order void, we hold that the

18 district court did not err in refusing to grant Plaintiffs’ Rule 1-060(B)(4) motion.

19 Therefore, for the reasons stated in this opinion and in our notice of proposed

4 1 summary disposition, we affirm.

2 IT IS SO ORDERED.

3 ________________________________ 4 CELIA FOY CASTILLO, Judge

5 WE CONCUR:

6 ________________________________ 7 JONATHAN B. SUTIN, Chief Judge

8 ________________________________ 9 ROBERT E. ROBLES, Judge