Oliver v. Walck

• Court: New Mexico Court of Appeals
• Decided: February 25, 2011
• Docket: 30,843
• Status: Unpublished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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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 JOSEPH F. OLIVER and 8 MICHAEL R. ROUANZION,

9 Plaintiffs-Appellees,

10 v. NO. 30,843

11 ALFRED R. WALCK, JANICE 12 WALCK a/k/a JANICE WALCK 13 ENCINIAS, and JOHN E. WALCK,

14 Defendants-Appellants,

15 and,

16 BOARD OF COUNTY COMMISSIONERS 17 for MORA COUNTY

18 Defendant-Appellee.

19 APPEAL FROM THE DISTRICT COURT OF MORA COUNTY 20 John M. Paternoster, District Judge

21 Scheuer, Yost & Patterson, P.C. 22 Charlotte H. Hetherington 23 Kristin L. Davidson 24 Santa Fe, NM

25 for Appellees Joseph F. Oliver and 26 Michael R. Rouanzion

27 Alfred R. Walck 1 John R. Walck 2 Albuquerque, NM

3 Pro Se Appellants 4 Clark, Grubesic, Jones & Baur, L.L.C. 5 John T. Grubesic 6 Santa Fe, NM

7 for Appellee Board of County 8 Commissioners for Mora County

9 MEMORANDUM OPINION

10 KENNEDY, Judge.

11 Defendants, John Walck and Alfred Walck, pro se, appeal from the district

12 court’s order entering a final judgment on the merits and granting injunctive and

13 declaratory relief. We issued a notice of proposed summary disposition proposing

14 summary affirmance. Defendant has filed a timely memorandum in opposition. We

15 affirm.

16 In our calendar notice, we informed Defendants that their docketing statement

17 did not conform to our rules of appellate procedure. Specifically, the docketing

18 statement does not contain an intelligible statement of the issues, nor does it indicate

19 whether and how the issues were preserved. See Rule 12-208(D)(4) NMRA (stating

20 that the docketing statement shall contain a statement of the issues presented including

21 a statement of how they arose and how they were preserved in the trial court).

2 1 Additionally, the docketing statement does not contain a statement of the case

2 summarizing all facts material to a consideration of the issues presented as required

3 by Rule 12-208(D)(3) NMRA. Accordingly, we informed Defendants in our notice

4 of proposed summary disposition that they should set out all relevant information in

5 their memorandum in opposition, should they oppose our proposed summary

6 affirmance.

7 Defendants have now filed a memorandum in opposition with this Court.

8 However, the memorandum in opposition does not contain the information we

9 requested in our notice of proposed summary disposition. We still have no recitation

10 of the facts and evidence presented below and no statement of how the issues

11 presented for appeal arose or were preserved. Without this information, we cannot

12 review Defendants’ issues.

13 We note that Defendants attached documents to their memorandum in

14 opposition including copies of the complaint, survey maps, orders in the district court,

15 and copies of photographs. However, none of these documents provide us with the

16 information we would need to address Defendants’ appeal. It is the duty of the

17 appellant to provide a record adequate to review the issues on appeal. Williams v. Bd.

18 of County Comm’rs of San Juan County, 1998-NMCA-090, ¶ 10, 125 N.M. 445, 963

19 P.2d 522. “Upon a doubtful or deficient record, every presumption is indulged in

3 1 favor of the correctness and regularity of the trial court’s decision, and the appellate

2 court will indulge in reasonable presumptions in support of the order entered.” Reeves

3 v. Wimberly, 107 N.M. 231, 236, 755 P.2d 75, 80 (Ct. App. 1988). Pro se litigants

4 must comply with the rules and orders of the court and will not be treated differently

5 from litigants with counsel. See Bruce v. Lester, 1999-NMCA-051, ¶ 4, 127 N.M.

6 301, 980 P.2d 84; see also Clayton v. Trotter, 110 N.M. 369, 373, 796 P.2d 262, 266

7 (Ct. App. 1990) (stating that the appellate court will review pro se arguments to the

8 best of its ability, but cannot respond to unintelligible arguments); Santistevan v.

9 Centinel Bank of Taos, 96 N.M. 734, 737, 634 P.2d 1286, 1289 (Ct. App.), aff’d in

10 part and rev’d in part, 96 N.M. 730, 634 P.2d 1282 (stating that the Court of Appeals

11 will not review unclear arguments).

12 For these reasons, we have no choice but to affirm the district court.

13 IT IS SO ORDERED.

14 ___________________________________ 15 RODERICK T. KENNEDY, Judge

16 WE CONCUR:

17 ___________________________ 18 JAMES J. WECHSLER, Judge

4 1 ___________________________ 2 LINDA M. VANZI, Judge