Carreno v. Gomez

• Court: New Mexico Court of Appeals
• Decided: March 5, 2014
• Docket: 33,177
• Status: Unpublished

Opinion

This memorandum opinion was not selected for publication in the New Mexico Appellate 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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.

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

2 JESUS CARRENO,

3 Plaintiff-Appellee,

4 v. NO. 33,177

5 PETER J. GOMEZ and 6 MARY ELLEN McAFEE,

7 Defendants-Appellants,

8 and

9 PENNY GOMEZ, PEDRO J. GOMEZ, 10 ELFEGO GOMEZ, CANDELARITA 11 Q. GOMEZ, and ALL UNKNOWN 12 PERSONS CLAIMING AN INTEREST 13 IN THE PREMISES ADVERSE TO 14 THE PLAINTIFF,

15 Defendants.

16 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 17 Glenn T. Ellington, District Judge

18 Law Office of Karen Aubrey 19 Karen Aubrey 20 Santa Fe, NM 1 for Appellee

2 Peter J. Gomez 3 Mary Ellen McAfee 4 Santa Fe, NM

5 Pro Se Appellants

6 MEMORANDUM OPINION

7 KENNEDY, Chief Judge.

8 {1} Peter Gomez and Mary Ellen McAfee (Defendants) appeal the judgment entered

9 against them in the district court, asserting, among other things, that they “were not

10 notified of a hearing or issuance” of the judgment prior to its entry. [DS 1] This

11 Court issued a notice of proposed summary disposition, proposing to reverse and

12 remand for the limited purpose of allowing the district court to conduct a presentment

13 hearing prior to entry of a final judgment. [CN 4] That notice also denied as moot

14 Defendants’ then-pending motion to amend the docketing statement. [CN 2]

15 {2} Jesus Carreno (Plaintiff) has filed a “Response to Notice of Proposed Summary

16 Disposition” that, in substance, supports the disposition proposed by this Court.

17 Defendants have filed a “Memorandum in Support of Proposed Disposition to Reverse

18 and Remand for the Limited Purpose of Conducting Hearing on Judgment” that agrees

19 with this Court’s proposed summary disposition, but also raises new issues and

20 requests relief related to Plaintiff’s actions in connection with execution of the

2 1 judgment below. As Defendants’ memorandum asserts and relies upon facts that have

2 occurred since the entry of judgment in this case, the relief requested therein depends

3 entirely upon facts that do not currently appear in the record on appeal. As a result,

4 the new relief requested in Defendants’ memorandum is not properly before this Court

5 at this time. See State v. Reynolds, 1990-NMCA-122, ¶ 16, 111 N.M. 263, 804 P.2d

6 1082 (“Matters outside the record present no issue for review.”).

7 {3} In any event, the parties are in agreement that the judgment below should be

8 reversed, and the case remanded for a presentment hearing. Thus, for the reasons

9 stated here and in our notice of proposed summary disposition, the judgment below

10 is reversed, and the case is remanded for the limited purpose of allowing the district

11 court to conduct a presentment hearing prior to entry of a final judgment.

12 {4} IT IS SO ORDERED.

13 ____________________________________ 14 RODERICK T. KENNEDY, Chief Judge

3 1 WE CONCUR:

2 ___________________________ 3 JONATHAN B. SUTIN, Judge

4 ___________________________ 5 M. MONICA ZAMORA, Judge