Seaman v. Swain

• Court: New Mexico Court of Appeals
• Decided: November 30, 2011
• Docket: 31,307
• Status: Unpublished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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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 THOMAS SEAMAN, in his capacity 8 as Receiver for the assets of Theodore 9 Wesley Swain,

10 Plaintiff-Appellee,

11 v. NO. 31,307

12 THEODORE WESLEY SWAIN, a/k/a 13 THEODORE SWAIN,

14 Defendant-Appellant,

15 LYNRAE SWAIN, EL SEGUNDO CINCUENTA 16 CORPORATION, a New Mexico Corporation, and 17 FIRST NEW MEXICO BANK, a New Mexico 18 Banking Organization,

19 Defendants.

20 APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY 21 Gary M. Jeffreys, District Judge

22 Hinkle, Hensley, Shanor & Martin, LLP 23 Gary W. Larson 24 Nancy S. Cusack 25 Santa Fe, NM

26 for Appellee

27 Theodore Wesley Swain 1 San Diego, CA

2 Pro Se Appellant

3 MEMORANDUM OPINION

4 VANZI, Judge.

5 Appellant Theodore Swain (Defendant) appeals pro se from the district court’s

6 refusal to set aside the default judgment against him that provides that Appellee

7 Thomas Seaman (Plaintiff) has the authority to act as a receiver for Defendant’s

8 assets. [RP Vol.III/636] Defendant also appeals from the district court’s order that

9 grants Plaintiff’s motion to strike some of Defendant’s pleadings [RP Vol.III/634],

10 which includes his late answer and “cross-complaint”. [RP Vol.II/234, 251] Our

11 notice proposed to affirm, and Defendant filed a timely memorandum in opposition.

12 We remain unpersuaded by Defendant’s arguments and therefore affirm.

13 Defendant continues to argue that the district court erred in denying his request

14 to set aside the default judgment. [DS 3, 9-10] For reasons detailed in our notice,

15 Defendant did not present adequate grounds to set aside the default judgment. Even

16 though the district court afforded Defendant an extension to file his answer [RP

17 Vol.I/81; RP Vol.III/519; MIO 2], he failed to timely do so and thus failed to comply

18 with the procedural rules of the court at his own peril. See generally Benavidez v.

19 Benavidez, 99 N.M. 535, 539, 660 P.2d 1017, 1021 (1983) (recognizing that a party

2 1 who has chosen a course of action that prevented the party from taking the necessary

2 steps to protect its interests is not entitled to relief). Any requests by Defendant to

3 obtain a copy of the rules [MIO 2] do not absolve him of his responsibility to follow

4 the rules. See Newsome v. Farer, 103 N.M. 415, 419, 708 P.2d 327, 331 (1985)

5 (providing that pro se litigants are held to the same standards as litigants represented

6 by counsel). Nor does Defendant’s asserted need for further time to file something

7 more than “any old answer” [MIO 6, 12] absolve him of his responsibility to follow

8 the rules. Id. Moreover, while Defendant maintains that he lacked adequate access

9 to legal resources while in prison in California and therefore was unable to file a

10 timely answer [DS 9; MIO 3-7, 13], his assertion is not supported by the record, as he

11 filed many pleadings—some before he responded to the complaint or default

12 judgment. [RP Vol.III/521-22] See generally Griffin v. Thomas, 2004-NMCA-088,

13 ¶ 62, 136 N.M. 129, 95 P.3d 1044 (holding that an inmate alleging that his

14 constitutional access to the courts was violated by a prison law library access policy

15 must show that the alleged shortcomings actually hindered efforts to pursue a legal

16 claim).

17 Apart from Defendant’s failure to provide adequate grounds for vacating the

18 default judgment, he did not provide a meritorious defense in his motion to set aside

19 the default judgment. [RP Vol.II/201] While Defendant may believe that he was not

3 1 legally convicted for the underlying crimes that resulted in the appointment of a

2 receiver, or that the appointment of a receiver is even merited [RP Vol.II/236; MIO

3 8-10], he provides no credible facts or legal authority to support his belief, or to

4 otherwise justify setting aside the default judgment. [MIO 9-11] Cf. Rule 1-060(B)

5 NMRA (setting forth reasons why a court may relieve a party from a final judgment).

6 To the extent Defendant asserts that his conviction, upon which the appointment of

7 a receivership stems, was due to alleged ineffective assistance of counsel [MIO 9], this

8 is a challenge to the underlying conviction, not to the entry of the default judgment

9 in favor of Plaintiff’s complaint for declaratory relief to act as a receiver. W e

10 further remain unpersuaded by Defendant’s argument that the district court erred in

11 granting Plaintiff’s motion to strike [RP Vol.III/634; MIO 2], given that Defendant

12 filed the pleadings at issue after default judgment was entered and without leave of

13 court. Lastly, to the extent Defendant continues to contest the district court’s denial

14 of his request to represent El Segundo Cincuenta Corporation [RP Vol.III/640; MIO

15 14-15], we agree with the district court’s ruling. See generally Chisholm v.

16 Rueckhaus, 1997-NMCA-112, ¶ 5, 124 N.M. 255, 948 P.2d 707 (providing that a non-

17 attorney may not represent another person in a legal proceeding and that a corporation

18 can appear in court only by an attorney at law). In this regard, we note that the

4 1 Corporation did not move to set aside the default judgment against it, or otherwise

2 appeal from entry of the default judgment.

3 Based on our notice and the foregoing discussion, we affirm.

4 IT IS SO ORDERED.

5 __________________________________ 6 LINDA M. VANZI, Judge

7 WE CONCUR:

8 _________________________________ 9 CYNTHIA A. FRY, Judge

10 _________________________________ 11 TIMOTHY L. GARCIA, Judge