Reyes v. Manning

Opinion

This memorandum opinion was not selected for publication in the New Mexico 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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.

3 Plaintiff-Appellant,

4 vs. NO. 31,844

6 MGA INSURANCE CO., and

8 Defendants.

9 and

11 Defendant-Appellee.

13 Alan M. Malott, District Judge

14 Paul Keith Reyes 15 Albuquerque, NM

16 Pro se Appellant

17 Butt Thornton & Baehr, P.C. 18 Alfred L. Green, Jr. 19 Albuquerque, NM 1 for MGA Insurance Co. & Gainsco

2 O’Brien & Padilla, P.C. 3 Richard M. Padilla 4 Alicia M. Santos 5 Albuquerque, NM

6 for Appellee

8 GARCIA, Judge.

9 Paul Keith Reyes (Plaintiff) has appealed from two orders: (1) referring this

10 case to a settlement conference, and (2) the other dismissing his claims against

11 Defendant-Appellee Malcolm Manning (Defendant). We issued a notice of proposed

12 summary disposition, proposing to hold that the first order is not properly before us,

13 and proposing to reverse the second. Because Plaintiff has filed no responsive

14 memorandum, we adhere to our initial evaluation relative to the order referring the

15 case to settlement, and decline to consider the matter further. Defendant has filed a

16 memorandum in opposition. After due consideration, we remain of the opinion that

17 the order of dismissal was improvidently entered. We, therefore, reverse and remand

18 for further proceedings.

2 1 As we previously noted, the order of dismissal might be premised on either

2 insufficient service of process or Rule 1-007.1 NMRA. With respect to the former

3 theory, our case law makes clear that insofar as Defendant filed a notice of peremptory

4 excusal he entered a general appearance, thereby waiving any objection to the

5 sufficiency of service of process. See Ortiz v. Shaw, 2008-NMCA-136, ¶ 24, 145

6 N.M. 58, 193 P.3d 605. In his memorandum in opposition Defendant urges this Court

7 to limit or overturn Ortiz, on grounds that it “forces a party to choose between

8 preserving his right to contest the sufficiency of service of process and exercising his

9 right of peremptory excusal.” [MIO 2] However, we are aware of no authority

10 indicating that it is improper to require a litigant to make such a choice. None of the

11 cases cited in the memorandum in opposition so provide. In a different context, we

12 have recognized that a criminal defendant cannot be required to waive one

13 constitutional right in order to assert another. See State v. Gutierrez, 119 N.M. 618,

14 623, 894 P.2d 395, 400 (Ct. App. 1995). However, this is a civil case, and the right

15 to peremptory excusal is statutory rather than constitutional. See NMSA 1978, § 38-

16 3-9 (1985). As a result, we are not persuaded that limitation or abandonment of Ortiz

17 is in order.

18 Rule 1-007.1 is similarly unavailing. As we previously noted, the courts are

19 required to consider a number of factors before granting a dispositive motion on this

3 1 basis. See Lujan v. City of Albuquerque, 2003-NMCA-104, ¶ 12, 134 N.M. 207, 75

2 P.3d 423. Insofar as Lujan establishes a generalized analytical requirement,

3 Defendant’s attempt to distinguish Lujan on its facts is unpersuasive. [MIO 4] And

4 because we find no indication that the district court undertook the requisite analysis,

5 we remain of the opinion that Rule 1-007.1 cannot supply a basis for affirmance.

6 Accordingly, for the reasons stated above and in our notice of proposed

7 summary disposition, we reverse and remand for further proceedings.

9 _______________________________ 10 TIMOTHY L. GARCIA, Judge

11 WE CONCUR:

12 13 RODERICK T. KENNEDY, Judge

14 15 LINDA M. VANZI, Judge