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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 VICTOR ESCOBAR,
3 Plaintiff-Appellant,
4 v. NO. 32,846
5 SUNRAY GAMING OF NEW 6 MEXICO, LLC, a/k/a SUNRAY 7 PARK AND CASINO,
8 Respondent-Appellee.
9 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY 10 Violet C. Otero, District Judge
11 Martin E. Threet & Associates 12 Martin E. Threet 13 Albuquerque, NM
14 for Appellant
15 French & Associates, P.C. 16 Joel M. Young 17 Albuquerque, NM
18 for Appellee
19 MEMORANDUM OPINION 1 GARCIA, Judge.
2 {1} Plaintiff has appealed from the dismissal of his complaint and an award of
3 sanctions. We issued a notice of proposed summary disposition, proposing to uphold
4 the decisions rendered by the district court. Defendant has filed a combined
5 memorandum in support and motion for additional sanctions, and Plaintiff has filed
6 a memorandum in opposition. After due consideration, we affirm.
7 {2} As an initial matter, we will address Defendant’s motion for additional Rule 1-
8 011 NMRA sanctions. [MIS 2-3] For the reasons previously set forth in the notice of
9 proposed summary disposition and as further described below, we conclude that the
10 district court’s award of sanctions is affirmable. However, in our estimation the
11 representations contained in the docketing statement to which Defendant objects [MIS
12 2-3] may be regarded as historical recitation, rather than perpetuation of groundless
13 accusations. We therefore deny Defendant’s motion.
14 {3} Turning to the merits, because we have previously described the pertinent
15 background information and discussed the merits at some length, we will avoid undue
16 repetition here. Instead, we will focus on the content of the memorandum in
17 opposition.
18 {4} By his first and fifth issues, Plaintiff has challenged the manner in which the
19 first order of dismissal was submitted by opposing counsel and entered by the district
2 1 court. [DS 7-8; MIO 2-6] As we previously observed, the district court rejected
2 Plaintiff’s assertion that defense counsel misrepresented his concurrence. The record
3 supports the district court’s assessment, [RP 93-95, 99-105, 129-130] which we
4 remain unwilling to second-guess. See generally State v. Martinez, 2002-NMSC-008,
5 ¶ 74, 132 N.M. 32, 43 P.3d 1042 (Serna, C.J., dissenting) (“When a district court
6 settles a dispute about what occurred in proceedings before it, the court’s
7 determination is conclusive unless intentionally false or plainly unreasonable, this
8 because [u]ltimately the [District] Court has direct knowledge of what the parties
9 [stated in the] case and of what the Court’s own general procedures are.” (alterations
10 in original, internal quotation marks, and citation omitted)).
11 {5} In his memorandum in opposition Plaintiff now takes the position that insofar
12 as he was entitled to file his objections up until the end of the ninth day after the
13 decision had been announced, the district court jumped the proverbial gun by entering
14 the draft order on the morning of ninth day. [MIO 2-3, 6; RP 81-83] Plaintiff also now
15 argues that insofar as neither approval nor a formal presentment hearing had occurred
16 pursuant to the local rules, the district court was not at liberty to enter the order. [MIO
17 2-3, 5-6] We remain unpersuaded. Plaintiff was given ample notice regarding the
18 content of the proposed form of order, together with the opportunity to take a position,
19 which he repeatedly declined to do. Under such circumstances, failure to strictly
3 1 adhere to the local rules does not render the order void. See, e.g., In re Adoption of
2 Homer F., 2009-NMCA-082, ¶¶ 27-28, 146 N.M. 845, 215 P.3d 783 (addressing a
3 similar technical violation of a local rule, and concluding that if the parties received
4 notice of the proposed order and were allowed to assert their arguments, compliance
5 is sufficient, and the order is not rendered void); Muse v. Muse, 2009-NMCA-003,
6 ¶¶ 31-32, 145 N.M. 451, 200 P.3d 104 (arriving at a similar conclusion under
7 analogous circumstances). Moreover, given that the district court subsequently
8 considered extensive arguments and conducted a hearing on Plaintiff’s motion to
9 strike, thereby providing Plaintiff with additional notice and yet another opportunity
10 to present his position, [RP 84-129] only after which the district court entered its
11 second order of dismissal, [RP 131-32] we conclude that any procedural irregularity
12 associated with the entry of the first order was rectified. See In re Homer F.,
13 2009-NMCA-082, ¶ 28 (discussing functionally equivalent presentment hearings).
14 {6} By his second issue Plaintiff has challenged the imposition of sanctions against
15 him. [DS 7] Plaintiff characterizes defense counsel’s motion for sanctions as
16 impermissibly designed to intimidate or coerce, [MIO 6-8] characterizes the district
17 court’s ruling as “vengeful in nature,” [MIO 9] and contends that he was improperly
18 sanctioned for advancing a good-faith but unsuccessful legal argument. [MIO 9]
19 However, the record belies Plaintiff’s assertions. As we previously observed in the
4 1 notice of proposed summary disposition, the award was premised on Plaintiff’s
2 unfounded attacks on defense counsel. [RP 135] The district court’s assessment of
3 Plaintiff’s litigation conduct, which finds ample support in the record, supplies an
4 appropriate basis for the imposition of sanctions. See generally Rivera v. Brazos
5 Lodge Corp., 1991-NMSC-030, ¶ 13, 111 N.M. 670, 808 P.2d 955 (providing that
6 Rule 1-011 allows a court to “exercise its discretion and impose sanctions for a willful
7 violation of the rule when it finds, for example, that a pleading or other paper signed
8 by an attorney is not well grounded in fact, is not warranted by existing law or a
9 reasonable argument for its extension, or is interposed for an improper purpose”). The
10 district court “is in the best position to view the factual circumstances surrounding an
11 alleged violation [of Rule 1-011].” Id. ¶ 17. In this case, we perceive no abuse of
12 discretion. See generally Lowe v. Bloom, 1991-NMSC-058, ¶ 5, 112 N.M. 203, 813
13 P.2d 480 (providing that the imposition of sanctions pursuant to Rule 1-011 NMRA
14 is reviewed for abuse of discretion).
15 {7} By his third and fourth issues Plaintiff has challenged the district court’s
16 decision on the merits, contending that the complaint should not have been dismissed
17 insofar as a viable claim could have been advanced based on faulty equipment or a
18 dangerous condition on the premises (specifically, the starting gate). [MIO 10-15]
19 However, Plaintiff acknowledges that he did not allege a defective starting gate in his
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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 VICTOR ESCOBAR,
3 Plaintiff-Appellant,
4 v. NO. 32,846
5 SUNRAY GAMING OF NEW 6 MEXICO, LLC, a/k/a SUNRAY 7 PARK AND CASINO,
8 Respondent-Appellee.
9 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY 10 Violet C. Otero, District Judge
11 Martin E. Threet & Associates 12 Martin E. Threet 13 Albuquerque, NM
14 for Appellant
15 French & Associates, P.C. 16 Joel M. Young 17 Albuquerque, NM
18 for Appellee
19 MEMORANDUM OPINION 1 GARCIA, Judge.
2 {1} Plaintiff has appealed from the dismissal of his complaint and an award of
3 sanctions. We issued a notice of proposed summary disposition, proposing to uphold
4 the decisions rendered by the district court. Defendant has filed a combined
5 memorandum in support and motion for additional sanctions, and Plaintiff has filed
6 a memorandum in opposition. After due consideration, we affirm.
7 {2} As an initial matter, we will address Defendant’s motion for additional Rule 1-
8 011 NMRA sanctions. [MIS 2-3] For the reasons previously set forth in the notice of
9 proposed summary disposition and as further described below, we conclude that the
10 district court’s award of sanctions is affirmable. However, in our estimation the
11 representations contained in the docketing statement to which Defendant objects [MIS
12 2-3] may be regarded as historical recitation, rather than perpetuation of groundless
13 accusations. We therefore deny Defendant’s motion.
14 {3} Turning to the merits, because we have previously described the pertinent
15 background information and discussed the merits at some length, we will avoid undue
16 repetition here. Instead, we will focus on the content of the memorandum in
17 opposition.
18 {4} By his first and fifth issues, Plaintiff has challenged the manner in which the
19 first order of dismissal was submitted by opposing counsel and entered by the district
2 1 court. [DS 7-8; MIO 2-6] As we previously observed, the district court rejected
2 Plaintiff’s assertion that defense counsel misrepresented his concurrence. The record
3 supports the district court’s assessment, [RP 93-95, 99-105, 129-130] which we
4 remain unwilling to second-guess. See generally State v. Martinez, 2002-NMSC-008,
5 ¶ 74, 132 N.M. 32, 43 P.3d 1042 (Serna, C.J., dissenting) (“When a district court
6 settles a dispute about what occurred in proceedings before it, the court’s
7 determination is conclusive unless intentionally false or plainly unreasonable, this
8 because [u]ltimately the [District] Court has direct knowledge of what the parties
9 [stated in the] case and of what the Court’s own general procedures are.” (alterations
10 in original, internal quotation marks, and citation omitted)).
11 {5} In his memorandum in opposition Plaintiff now takes the position that insofar
12 as he was entitled to file his objections up until the end of the ninth day after the
13 decision had been announced, the district court jumped the proverbial gun by entering
14 the draft order on the morning of ninth day. [MIO 2-3, 6; RP 81-83] Plaintiff also now
15 argues that insofar as neither approval nor a formal presentment hearing had occurred
16 pursuant to the local rules, the district court was not at liberty to enter the order. [MIO
17 2-3, 5-6] We remain unpersuaded. Plaintiff was given ample notice regarding the
18 content of the proposed form of order, together with the opportunity to take a position,
19 which he repeatedly declined to do. Under such circumstances, failure to strictly
3 1 adhere to the local rules does not render the order void. See, e.g., In re Adoption of
2 Homer F., 2009-NMCA-082, ¶¶ 27-28, 146 N.M. 845, 215 P.3d 783 (addressing a
3 similar technical violation of a local rule, and concluding that if the parties received
4 notice of the proposed order and were allowed to assert their arguments, compliance
5 is sufficient, and the order is not rendered void); Muse v. Muse, 2009-NMCA-003,
6 ¶¶ 31-32, 145 N.M. 451, 200 P.3d 104 (arriving at a similar conclusion under
7 analogous circumstances). Moreover, given that the district court subsequently
8 considered extensive arguments and conducted a hearing on Plaintiff’s motion to
9 strike, thereby providing Plaintiff with additional notice and yet another opportunity
10 to present his position, [RP 84-129] only after which the district court entered its
11 second order of dismissal, [RP 131-32] we conclude that any procedural irregularity
12 associated with the entry of the first order was rectified. See In re Homer F.,
13 2009-NMCA-082, ¶ 28 (discussing functionally equivalent presentment hearings).
14 {6} By his second issue Plaintiff has challenged the imposition of sanctions against
15 him. [DS 7] Plaintiff characterizes defense counsel’s motion for sanctions as
16 impermissibly designed to intimidate or coerce, [MIO 6-8] characterizes the district
17 court’s ruling as “vengeful in nature,” [MIO 9] and contends that he was improperly
18 sanctioned for advancing a good-faith but unsuccessful legal argument. [MIO 9]
19 However, the record belies Plaintiff’s assertions. As we previously observed in the
4 1 notice of proposed summary disposition, the award was premised on Plaintiff’s
2 unfounded attacks on defense counsel. [RP 135] The district court’s assessment of
3 Plaintiff’s litigation conduct, which finds ample support in the record, supplies an
4 appropriate basis for the imposition of sanctions. See generally Rivera v. Brazos
5 Lodge Corp., 1991-NMSC-030, ¶ 13, 111 N.M. 670, 808 P.2d 955 (providing that
6 Rule 1-011 allows a court to “exercise its discretion and impose sanctions for a willful
7 violation of the rule when it finds, for example, that a pleading or other paper signed
8 by an attorney is not well grounded in fact, is not warranted by existing law or a
9 reasonable argument for its extension, or is interposed for an improper purpose”). The
10 district court “is in the best position to view the factual circumstances surrounding an
11 alleged violation [of Rule 1-011].” Id. ¶ 17. In this case, we perceive no abuse of
12 discretion. See generally Lowe v. Bloom, 1991-NMSC-058, ¶ 5, 112 N.M. 203, 813
13 P.2d 480 (providing that the imposition of sanctions pursuant to Rule 1-011 NMRA
14 is reviewed for abuse of discretion).
15 {7} By his third and fourth issues Plaintiff has challenged the district court’s
16 decision on the merits, contending that the complaint should not have been dismissed
17 insofar as a viable claim could have been advanced based on faulty equipment or a
18 dangerous condition on the premises (specifically, the starting gate). [MIO 10-15]
19 However, Plaintiff acknowledges that he did not allege a defective starting gate in his
5 1 complaint, [MIO 12] and contrary to Plaintiff’s suggestion, the district court’s
2 ruminations do not rectify that deficiency. [MIO 11-13] The fact that a viable claim
3 might theoretically have been advanced is not material; it was incumbent upon
4 Plaintiff to allege the essentials within the complaint itself. Plaintiff’s total failure to
5 advance any allegation of faulty equipment or a dangerous condition on the premises
6 constitutes the sort of deficiency which supports dismissal for failure to state a claim.
7 See generally Healthsource, Inc. v. X-Ray Assocs. of N.M., 2005-NMCA-097, ¶ 16,
8 138 N.M. 70, 116 P.3d 861 (“A complaint should not be dismissed unless there is a
9 total failure to allege some matter essential to the relief sought.”).
10 {8} Plaintiff now contends that the district court erred in dismissing the complaint
11 with prejudice, arguing that he should have been permitted to amend to assert a claim
12 based on faulty equipment. [MIO 13-15] However, in light of Plaintiff’s failure to
13 timely file objections to the proposed form of order dismissing the complaint with
14 prejudice,[RP 83] notwithstanding notice and the opportunity to do so, the district
15 court concluded that Plaintiff had waived any objection. [RP 130] Moreover, we find
16 no indication in the record that Plaintiff ever sought leave to amend his complaint.
17 Under the circumstances, we conclude that the matter is not properly before us. See,
18 e.g., San Juan Agric. Water Users Ass’n v. KNME-TV, 2010-NMCA-012, ¶¶ 33-37,
19 147 N.M. 643, 227 P.3d 612 (declining to consider a party’s entitlement to amend
6 1 where leave to amend was never sought, but only hypothetically suggested, and
2 notwithstanding the fact that the claimants would likely have been entitled to amend
3 had they sought leave to do so), rev’d on other grounds, 2011-NMSC-011, 150 N.M.
4 64, 257 P.3d 884; and see generally Liberty Mut. Ins. Co v. Salgado,
5 2005-NMCA-144, ¶ 18, 138 N.M. 685, 125 P.3d 664 (stating that where the record
6 contained no request for leave to amend the complaint in response to a motion to
7 dismiss, this Court would not consider the matter on appeal; instead, we will confine
8 appellate review the case actually litigated below).
9 {9} Accordingly, for the reasons stated above and in the notice of proposed
10 summary disposition, we affirm.
11 {10} IT IS SO ORDERED.
12 13 TIMOTHY L. GARCIA, Judge
14 WE CONCUR:
15 16 JAMES J. WECHSLER, Judge
17 18 CYNTHIA A. FRY, Judge