Johnson v. Skate Away

• Court: New Mexico Court of Appeals
• Decided: May 17, 2010
• Docket: 29,987
• Status: Unpublished

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 3 also note that this electronic memorandum opinion may contain computer-generated errors or other 4 deviations from the official paper version filed by the Court of Appeals and does not include the 5 filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 REBECCA JOHNSON,

8 Plaintiff-Appellant,

9 v. NO. 29,987

10 SKATE AWAY USA, INC. 11 d/b/a SKATEWAY USA,

12 Defendant-Appellee.

13 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 14 Thomas J. Hynes, District Judge

15 Rudolfo Law Firm 16 Emeterio L. Rudolfo 17 Farmington, NM

18 for Appellant

19 Butt, Thornton & Baehr, P.C. 20 Emily Franke 21 Jane A. Laflin 22 Albuquerque, NM

23 for Appellee

24 MEMORANDUM OPINION

25 FRY, Chief Judge. 1 Plaintiff is appealing from a district court order barring Plaintiff’s complaint

2 under the doctrine of laches. We issued a second calendar notice proposing to reverse.

3 Defendant has responded with a memorandum in opposition. We reverse.

4 The sole issue in this case is whether the district court properly granted

5 summary judgment after concluding that Plaintiff’s complaint was barred by the

6 doctrine of laches. “The decision to apply laches is left to the sound discretion of the

7 [district] court which we review only for an abuse of discretion.” Skaggs v. Conoco,

8 Inc., 1998-NMCA-061, ¶ 13, 125 N.M. 97, 957 P.2d 526.

9 In order to bar Plaintiff’s complaint, the doctrine of laches required the district

10 court to find the following: (1) conduct on the part of Defendant giving rise to

11 Plaintiff’s complaint; (2) delay in asserting Plaintiff’s rights, with Plaintiff having had

12 knowledge or notice of Defendant’s conduct and having been afforded an opportunity

13 to institute a suit; (3) lack of knowledge or notice on the part of Defendant that

14 Plaintiff would assert the right on which she bases her suit; and (4) injury or prejudice

15 to Defendant in the event relief is accorded to the complainant or the suit is not held

16 to be barred. See Garcia v. Garcia, 111 N.M. 581, 588, 808 P.2d 31, 38 (1991).

17 Our second calendar notice proposed to agree with Plaintiff that the court’s

18 findings concerning notice were improper given the procedural posture of the court’s

19 ruling. “Summary judgment is appropriate where there are no genuine issues of

2 1 material fact and the movant is entitled to judgment as a matter of law. . . . We review

2 these legal questions de novo.” Self v. United Parcel Serv., Inc., 1998-NMSC-046,

3 ¶ 6, 126 N.M. 396, 970 P.2d 582.

4 Here the district court determined that Defendant “had no knowledge of the

5 incident” until the complaint was filed. [RP 121] However, Plaintiff’s affidavit and

6 an accompanying affidavit by Jessica Dufur indicate that Defendant’s employees were

7 aware of the incident and assisted Defendant at that time. [RP 41-42] In its

8 memorandum in opposition, Defendant argues that, as referenced above, the

9 appropriate inquiry is notice as it relates to a future assertion of a claimed right. [MIO

10 3] However, the district court’s factual resolution of the notice issue essentially

11 foreclosed the resolution of whether employees knowledge of the incident gave rise

12 to notice that Plaintiff would pursue a claim. We believe that Defendant’s employees’

13 notice may be imputed to Defendant under general agency law.

14 Defendant’s memorandum [MIO 4] also argues that Plaintiff’s affidavit

15 contained hearsay regarding statements made by Joe Barela. [RP 41] However, other

16 statements in the affidavits submitted by Plaintiff are non-hearsay statements

17 indicating Defendant’s possible knowledge of Plaintiff’s injury. [RP 41-42] To the

18 extent that Defendant is challenging Plaintiff’s credibility with respect to her

19 statements, we believe that this is another factual conflict. For example, Defendant

3 1 attempts to refute statements in Plaintiff’s affidavits with other purported facts that are

2 not supported by citation to the record. ]MIO 4] As such, there are genuine issue of

3 material fact, and summary judgment was improperly granted. See Cunningham v.

4 Gross, 102 N.M. 723, 726, 699 P.2d 1075, 1078 (1985) (holding that award of

5 equitable relief is still subject to the rules governing summary judgment).

6 CONCLUSION

7 For the reasons stated above, we reverse.

8 IT IS SO ORDERED.

9 10 CYNTHIA A. FRY, Chief Judge

11 WE CONCUR:

12 13 JAMES J. WECHSLER, Judge

14 15 TIMOTHY L. GARCIA, Judge