Downer v. NM Corrections Dept

• Court: New Mexico Court of Appeals
• Decided: March 14, 2011
• Docket: 30,839
• Status: Unpublished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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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 EUGENE DOWNER,

8 Plaintiff-Appellant,

9 v. NO. 30,839

10 NEW MEXICO CORRECTIONS 11 DEPARTMENT,

12 Defendant-Appellee.

13 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 14 James T. Martin, District Judge

15 Eugene Downer 16 Cloudcroft, NM

17 Pro Se Appellant

18 Sandenaw Law Firm, P.C. 19 CaraLyn Banks 20 Las Cruces, NM

21 for Appellee

22 MEMORANDUM OPINION

23 VIGIL, Judge. 1 Plaintiff appeals an order dismissing his complaint for defamation and

2 intentional infliction of emotional distress. In this Court’s notice of proposed

3 summary disposition, we proposed to affirm. Plaintiff has filed a memorandum in

4 opposition. We have considered Plaintiff’s arguments, and as we are not persuaded

5 by them, we affirm.

6 Plaintiff’s docketing statement raised eleven claims of error, all of which were

7 addressed in this Court’s notice of proposed summary disposition. In Plaintiff’s

8 memorandum in opposition, he makes a single argument: that Defendant was not

9 immune under the Tort Claims Act because the conduct alleged fell within the

10 exception provided by NMSA 1978, Section 41-4-10 (1978). [MIO unnumbered page

11 1] That section states that the immunity granted under the Tort Claims Act “does not

12 apply to liability for damages resulting from bodily injury, wrongful death or property

13 damage caused by the negligence of public employees licensed by the state or

14 permitted by law to provide health care services while acting within the scope of their

15 duties of providing health care services.”

16 In our notice of proposed summary disposition, we proposed to decline to

17 address this argument because it appeared from the record that Plaintiff had not

18 preserved it. [CN 10] See Woolwine v. Furr’s, Inc., 106 N.M. 492, 496, 745 P.2d

19 717, 721 (Ct. App. 1987) (“To preserve an issue for review on appeal, it must appear

2 1 that appellant fairly invoked a ruling of the trial court on the same grounds argued in

2 the appellate court.”). Plaintiff’s memorandum in opposition does not represent that

3 he did in fact preserve this argument. Accordingly, we decline to address the issue,

4 as Plaintiff has not demonstrated that it was preserved in the district court, and the

5 record appears to agree. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M.

6 754, 955 P.2d 683 (“Our courts have repeatedly held that, in summary calendar cases,

7 the burden is on the party opposing the proposed disposition to clearly point out errors

8 in fact or law.”).

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

10 summary disposition, we affirm.

11 IT IS SO ORDERED.

12 ___________________________________ 13 MICHAEL E. VIGIL, Judge 14 WE CONCUR:

15 _____________________________ 16 CYNTHIA A. FRY, Judge

17 _____________________________

3 1 TIMOTHY L. GARCIA, Judge