This memorandum opinion was not selected for publication in the New Mexico Appellate 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 GERALD A. SEXSON,
3 Plaintiff-Appellee,
4 v. No. 32,865
5 THOMAS JAMES EDWARDS,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY 8 Sheri Raphaelson, District Judge
9 The New Mexico Law Group, P.C. 10 Robert N. Singer 11 Albuquerque, NM
12 for Appellee
13 Dolan & Associates, P.C. 14 Daniel R. Dolan II 15 Albuquerque, NM
16 for Appellant
17 MEMORANDUM OPINION
18 BUSTAMANTE, Judge. 1 {1} Appellant Thomas James Edwards (Defendant) appeals from the district court’s
2 judgment that enforces the parties’ settlement agreement stemming from an easement
3 dispute. [RP 184] Our notice proposed to affirm. Appellee Gerald Sexson (Plaintiff)
4 filed a response in support of affirmance, and Defendant filed a timely response in
5 opposition pursuant to a granted extension. We remain unpersuaded by Defendant’s
6 arguments and therefore affirm.
7 {2} In issue (1), Defendant continues to argue that he was not given proper notice
8 when the district court “converted the hearing on Plaintiff’s motion for a temporary
9 restraining order to a hearing on Plaintiff’s motion to enforce settlement agreement.”
10 [DS 5; MIO 1] In our notice, we expressed concern whether this argument had been
11 raised below, in light of disparities between the information provided in Defendant’s
12 docketing statement [DS 2] and our review of the pleadings below. [RP Vol.1/83, 88-
13 89] To ensure the argument was preserved below, we instructed Defendant – in the
14 event he filed a memorandum in opposition – to provide this Court with the specific
15 objection he made at the hearing, Plaintiff’s response, and any stated ruling by the
16 district court on his objection, if provided. [cn 3] We also required that “Defendant .
17 . . provide a certified transcript of the hearing or other independent verification of the
18 exchange.” [cn 3] Defendant has complied with neither of our requests, and thus offers
19 us no assurance that this argument was preserved below. Accordingly, affirmance is
2 1 warranted for lack of preservation alone. See Rule 12-216(A) NMRA (requiring
2 arguments to be preserved for appeal).
3 {3} Apart from Defendant’s failure to comply with our preservation requirements,
4 affirmance on the merits is also appropriate. As support for his continued argument,
5 Defendant emphasizes that the district court violated LR1-401 when it failed to give
6 counsel four weeks’ notice of the hearing. [MIO 3] While LR 1-401(A) generally
7 contemplates four weeks’ notice of hearings, Defendant fails to acknowledge that it
8 additionally provides that “in the discretion of the judge” less notice may be given.
9 Relevant to this discretion, and as detailed in our notice, prior to the hearing other
10 events transpired which served to alert Defendant that matters other than Plaintiff’s
11 motion for temporary restraining order would be addressed at the hearing – namely,
12 the parties entering into an oral settlement agreement and Plaintiff’s efforts to enforce
13 the settlement agreement by his motion to enforce the settlement agreement [RP
14 Vol.1/40], as well as by Plaintiff’s request for a hearing on the motion to enforce
15 which specifically referenced the scheduled August 13, 2012, hearing. [RP Vol.1/54]
16 Given these events, Defendant’s attorney should have anticipated that the scheduled
17 August 13 hearing would address these matters, which effectively eclipsed Plaintiff’s
18 motion for temporary restraining order. Moreover, as we noted in our calendar notice,
19 after the hearing Defendant filed numerous pleadings in which he presented his
3 1 position. [RP Vol.1/63, 69, 128, 130, 138] His arguments were fully considered,
2 although ultimately rejected, by the district court in its April 30, 2013, final judgment.
3 [RP Vol.1/184] See generally Deaton v. Gutierrez, 2004-NMCA-043, ¶ 31, 135 N.M.
4 423, 89 P.3d 672 (recognizing an assertion of prejudice is not a showing of prejudice).
5 We thus affirm issue (1).
6 {4} In issue (2), Defendant continues to argue that the district court judge erred
7 when she “failed to acknowledge” Defendant’s motion for a continuance and held the
8 scheduled hearing on the parties’ outstanding motions. [RP Vol.1/175, 180, 182, 184;
9 DS 5; MIO 3] While Defendant generally asserts that the district court “made a
10 decision without knowing all facts” [MIO 4], we conclude that the district court acted
11 within its discretion in light of the dearth of “facts” presented in the motion for
12 continuance and Defendant’s failure to timely request a continuance. For the reasons
13 fully detailed in our calendar notice, we affirm the district court’s decision to deny the
14 continuance. See Jaycox v. Ekeson, 1993-NMSC-036, ¶ 10, 115 N.M. 635, 857 P.2d
15 35.
16 {5} Lastly, in issue (3), Defendant maintains that the district court erred in
17 approving the written settlement agreement and in ruling that it was an accurate
18 reflection of the parties’ oral agreement. [DS 5; MIO 4; RP Vol.1/184, 188] We
4 1 review the district court’s ruling pursuant to an abuse of discretion standard. See In
2 re Norwest Bank of N.M., N.A., 2003-NMCA-128, ¶ 22, 134 N.M. 516, 80 P.3d 98.
3 {6} In ruling against Defendant below, the district court noted that Defendant did
4 not voice any specific challenge to the referenced terms, but instead raised “collateral
5 and unfounded procedural objections [.]” [RP Vol.1/186] Consistent with this, in his
6 docketing statement Defendant generally argued that the written settlement agreement
7 “failed to accurately reflect” the parties’ oral agreement and “added terms that were
8 not negotiated between the parties,” but failed to indicate how it was different in any
9 material way or otherwise specify any asserted false information. [DS 1] See generally
10 In re Ernesto M., Jr., 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 318 (“An
11 assertion of prejudice is not a showing of prejudice.”). Now for the first time in his
12 memorandum in opposition, Defendant details a number of ways he believes the
13 written settlement agreement differs from the parties’ oral agreement. [MIO 4-5]
14 Defendant omits to state, however, whether these specific arguments were made
15 below. Given his failure to ensure preservation as discussed in issue (1) and the lack
16 of any preservation apparent from our review of the record proper, we question
17 whether these specific arguments were presented to the district court.
18 {7} Nonetheless, even assuming Defendant made the same arguments below as he
19 now makes on appeal, we conclude that the district court did not abuse its discretion
5 1 in approving the written settlement agreement and in ruling that it was an accurate
2 reflection of the parties’ oral agreement. [RP Vol.1/184, 188] See In re Norwest Bank
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This memorandum opinion was not selected for publication in the New Mexico Appellate 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.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 GERALD A. SEXSON,
3 Plaintiff-Appellee,
4 v. No. 32,865
5 THOMAS JAMES EDWARDS,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY 8 Sheri Raphaelson, District Judge
9 The New Mexico Law Group, P.C. 10 Robert N. Singer 11 Albuquerque, NM
12 for Appellee
13 Dolan & Associates, P.C. 14 Daniel R. Dolan II 15 Albuquerque, NM
16 for Appellant
17 MEMORANDUM OPINION
18 BUSTAMANTE, Judge. 1 {1} Appellant Thomas James Edwards (Defendant) appeals from the district court’s
2 judgment that enforces the parties’ settlement agreement stemming from an easement
3 dispute. [RP 184] Our notice proposed to affirm. Appellee Gerald Sexson (Plaintiff)
4 filed a response in support of affirmance, and Defendant filed a timely response in
5 opposition pursuant to a granted extension. We remain unpersuaded by Defendant’s
6 arguments and therefore affirm.
7 {2} In issue (1), Defendant continues to argue that he was not given proper notice
8 when the district court “converted the hearing on Plaintiff’s motion for a temporary
9 restraining order to a hearing on Plaintiff’s motion to enforce settlement agreement.”
10 [DS 5; MIO 1] In our notice, we expressed concern whether this argument had been
11 raised below, in light of disparities between the information provided in Defendant’s
12 docketing statement [DS 2] and our review of the pleadings below. [RP Vol.1/83, 88-
13 89] To ensure the argument was preserved below, we instructed Defendant – in the
14 event he filed a memorandum in opposition – to provide this Court with the specific
15 objection he made at the hearing, Plaintiff’s response, and any stated ruling by the
16 district court on his objection, if provided. [cn 3] We also required that “Defendant .
17 . . provide a certified transcript of the hearing or other independent verification of the
18 exchange.” [cn 3] Defendant has complied with neither of our requests, and thus offers
19 us no assurance that this argument was preserved below. Accordingly, affirmance is
2 1 warranted for lack of preservation alone. See Rule 12-216(A) NMRA (requiring
2 arguments to be preserved for appeal).
3 {3} Apart from Defendant’s failure to comply with our preservation requirements,
4 affirmance on the merits is also appropriate. As support for his continued argument,
5 Defendant emphasizes that the district court violated LR1-401 when it failed to give
6 counsel four weeks’ notice of the hearing. [MIO 3] While LR 1-401(A) generally
7 contemplates four weeks’ notice of hearings, Defendant fails to acknowledge that it
8 additionally provides that “in the discretion of the judge” less notice may be given.
9 Relevant to this discretion, and as detailed in our notice, prior to the hearing other
10 events transpired which served to alert Defendant that matters other than Plaintiff’s
11 motion for temporary restraining order would be addressed at the hearing – namely,
12 the parties entering into an oral settlement agreement and Plaintiff’s efforts to enforce
13 the settlement agreement by his motion to enforce the settlement agreement [RP
14 Vol.1/40], as well as by Plaintiff’s request for a hearing on the motion to enforce
15 which specifically referenced the scheduled August 13, 2012, hearing. [RP Vol.1/54]
16 Given these events, Defendant’s attorney should have anticipated that the scheduled
17 August 13 hearing would address these matters, which effectively eclipsed Plaintiff’s
18 motion for temporary restraining order. Moreover, as we noted in our calendar notice,
19 after the hearing Defendant filed numerous pleadings in which he presented his
3 1 position. [RP Vol.1/63, 69, 128, 130, 138] His arguments were fully considered,
2 although ultimately rejected, by the district court in its April 30, 2013, final judgment.
3 [RP Vol.1/184] See generally Deaton v. Gutierrez, 2004-NMCA-043, ¶ 31, 135 N.M.
4 423, 89 P.3d 672 (recognizing an assertion of prejudice is not a showing of prejudice).
5 We thus affirm issue (1).
6 {4} In issue (2), Defendant continues to argue that the district court judge erred
7 when she “failed to acknowledge” Defendant’s motion for a continuance and held the
8 scheduled hearing on the parties’ outstanding motions. [RP Vol.1/175, 180, 182, 184;
9 DS 5; MIO 3] While Defendant generally asserts that the district court “made a
10 decision without knowing all facts” [MIO 4], we conclude that the district court acted
11 within its discretion in light of the dearth of “facts” presented in the motion for
12 continuance and Defendant’s failure to timely request a continuance. For the reasons
13 fully detailed in our calendar notice, we affirm the district court’s decision to deny the
14 continuance. See Jaycox v. Ekeson, 1993-NMSC-036, ¶ 10, 115 N.M. 635, 857 P.2d
15 35.
16 {5} Lastly, in issue (3), Defendant maintains that the district court erred in
17 approving the written settlement agreement and in ruling that it was an accurate
18 reflection of the parties’ oral agreement. [DS 5; MIO 4; RP Vol.1/184, 188] We
4 1 review the district court’s ruling pursuant to an abuse of discretion standard. See In
2 re Norwest Bank of N.M., N.A., 2003-NMCA-128, ¶ 22, 134 N.M. 516, 80 P.3d 98.
3 {6} In ruling against Defendant below, the district court noted that Defendant did
4 not voice any specific challenge to the referenced terms, but instead raised “collateral
5 and unfounded procedural objections [.]” [RP Vol.1/186] Consistent with this, in his
6 docketing statement Defendant generally argued that the written settlement agreement
7 “failed to accurately reflect” the parties’ oral agreement and “added terms that were
8 not negotiated between the parties,” but failed to indicate how it was different in any
9 material way or otherwise specify any asserted false information. [DS 1] See generally
10 In re Ernesto M., Jr., 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 318 (“An
11 assertion of prejudice is not a showing of prejudice.”). Now for the first time in his
12 memorandum in opposition, Defendant details a number of ways he believes the
13 written settlement agreement differs from the parties’ oral agreement. [MIO 4-5]
14 Defendant omits to state, however, whether these specific arguments were made
15 below. Given his failure to ensure preservation as discussed in issue (1) and the lack
16 of any preservation apparent from our review of the record proper, we question
17 whether these specific arguments were presented to the district court.
18 {7} Nonetheless, even assuming Defendant made the same arguments below as he
19 now makes on appeal, we conclude that the district court did not abuse its discretion
5 1 in approving the written settlement agreement and in ruling that it was an accurate
2 reflection of the parties’ oral agreement. [RP Vol.1/184, 188] See In re Norwest Bank
3 of N.M., N.A., 2003-NMCA-128, ¶ 22 (reviewing for abuse of discretion). To this end,
4 the record reveals that in approving the settlement agreement, the district court
5 reviewed the transcript of the oral settlement terms and compared them with the draft
6 settlement agreement, and determined that the parties had unequivocally reached an
7 agreement on all material terms, as detailed by the district court in its recitation of the
8 terms in the final judgment. [RP Vol.1/185-86] To the extent Defendant refers to
9 asserted discrepancies between the parties’ oral agreement and the written agreement
10 [MIO 4-5], they are not significant because the essential terms of the written
11 agreement flow from the oral agreement. See Sitterly v. Matthews, 2000-NMCA-037,
12 ¶ 15, 129 N.M. 134, 2 P.3d 871 (recognizing that a settlement agreement is interpreted
13 in the same way as any other contract). Moreover, and significantly, after the district
14 court approved the settlement agreement, Defendant himself signed the written
15 settlement agreement [RP Vol.1/57] without objection. [RP Vol.1/86] See Builders
16 Contract Interiors, Inc. v. Hi-Lo Indus., Inc., 2006-NMCA-053, ¶ 7, 139 N.M. 508,
17 134 P.3d 795 (recognizing and enforcing the strong public policy of favoring
18 settlement agreements, such that there must be a compelling basis to set aside a
19 settlement agreement); see also Smith v. Price’s Creameries, 1982-NMSC-102, ¶ 13,
6 1 98 N.M. 541, 650 P.2d 825 (providing that “[e]ach party to a contract has a duty to
2 read and familiarize himself with its contents before he signs and delivers it, and if the
3 contract is plain and unequivocal in its terms, each is ordinarily bound thereby”). In
4 sum, finding no basis to disagree with the district court’s conclusion that the terms of
5 the oral agreement are accurately reflected in the written agreement signed by
6 Defendant, we uphold the district court.
7 {8} To conclude, for the reasons provided above and in our notice, we affirm.
8 {9} IT IS SO ORDERED.
9 10 MICHAEL D. BUSTAMANTE, Judge
11 WE CONCUR:
12 13 JAMES J. WECHSLER, Judge
14 15 TIMOTHY L. GARCIA, Judge