J Menke v. P Gaddy

• Court: New Mexico Court of Appeals
• Decided: February 9, 2009
• Docket: 28,940
• Status: Unpublished

Opinion

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

2 JAMES BRYAN MENKE,

3 Plaintiff-Appellant,

4 v. NO. 28,940

5 PHILIP C. GADDY, BERNARD FENENBOCK, 6 GLENNA GADDY, LANE GADDY, WESTON 7 GADDY, GADDY LAW FIRM,

8 Defendants-Appellees.

9 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 10 Richard J. Knowles, District Judge

11 James Bryan Menke 12 Albuquerque, NM

13 Pro Se Appellant

14 Philip C. Gaddy 15 Lane Gaddy 16 Weston Gaddy 17 Albuquerque, NM

18 Bernard Fenenbock 19 El Paso, TX

20 Pro Se Appellees

21 MEMORANDUM OPINION 1 CASTILLO, Judge.

2 Appellant, pro se, appeals from the district court’s order dismissing his

3 complaint. This Court’s first notice proposed summary affirmance on the basis that

4 Appellant failed to include the information necessary to determine the issues raised.

5 Appellant filed a memorandum in opposition to the proposed disposition. Because

6 Appellant has not provided the information requested by this Court, we affirm the

7 district court’s order.

8 The first notice of proposed disposition expressly requested that Appellant

9 inform this Court of the exact claims brought in the prior litigation, who brought them,

10 in what capacity they were brought, against whom they were brought, and whether

11 they were resolved. Appellant needed only to name the specific claims brought in the

12 prior litigation and show that those claims were not resolved or that they were

13 different from the claims asserted in this case. The memorandum in opposition asserts

14 that the information requested by this Court is contained in the record proper.

15 However, many of the exhibits and documents referred to in the motions were not

16 made a part of the record. Nevertheless, even absent those documents, Appellant

17 could have met his burden by providing the specific information requested. See State

18 v. Calanche, 91 N.M. 390, 392, 574 P.2d 1018, 1020 (Ct. App. 1978) (stating that

19 factual recitations in the docketing statement are accepted as true unless the record on

2 1 appeal shows otherwise).

2 We presume that the district court is correct. Farmers, Inc. v. Dal Mach. &

3 Fabricating, Inc., 111 N.M. 6, 8, 800 P.2d 1063, 1065 (1990). Therefore, the burden

4 is on Appellant to clearly demonstrate that the district court erred. Id. The docketing

5 statement failed to set out all the relevant facts, and the memorandum in opposition

6 failed to remedy this deficiency, despite this Court’s specific request. See Thornton

7 v. Gamble, 101 N.M. 764, 769, 688 P.2d 1268, 1273 (Ct. App. 1984) (requiring

8 counsel to set out all the relevant facts in the docketing statement ). Therefore, we

9 conclude that Appellant has not met his burden of showing that the district court erred

10 in dismissing the complaint.

11 For these reasons and those stated in the first notice, we affirm the district

12 court’s order.

13 IT IS SO ORDERED.

14 ________________________________ 15 CELIA FOY CASTILLO, Judge

16 WE CONCUR:

3 1 ________________________________ 2 JAMES J. WECHSLER, Judge

3 ________________________________ 4 RODERICK T. KENNEDY, Judge