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 Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 STEVEN STONE, an 8 individual, d/b/a STONE 9 PLUMBING,
10 Plaintiff-Appellant,
11 v. NO. 30,085
12 WILEY MUNSEY, an 13 individual, d/b/a MUNSEY 14 CONSTRUCTION, LLC,
15 Defendant-Appellee.
16 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 17 Jerry H. Ritter, Jr., District Judge
18 Steven R. Stone 19 Cloudcroft, NM
20 Pro Se Appellant
21 Adam D. Rafkin 22 Ruidoso, NM
23 for Appellee
24 MEMORANDUM OPINION
25 FRY, Chief Judge. 1 Plaintiff, pro se, appeals from the district court’s order granting Defendant’s
2 motion for summary judgment and motion for Rule 1-011 NMRA sanctions. We
3 issued a notice of proposed summary disposition, proposing to affirm. Plaintiff has
4 responded to our notice with a memorandum in opposition, an affidavit, a motion to
5 amend the docketing statement, and an amended docketing statement. We have
6 considered Plaintiff’s arguments, and remain unpersuaded. We, therefore, deny the
7 motion to amend and affirm.
8 It is not clear whether the motion to amend the docketing statement and the
9 amended docketing statement seek to add an issue to the original docketing statement,
10 which is the proper purpose for such a motion. Rather, in these documents, Plaintiff
11 articulates his appellate issue differently, acknowledging, based on our proposed
12 analysis, that the district court’s ruling and Plaintiff’s appellate issues are grounded,
13 not in principles of res judicata, but in contract law. To the extent that the documents
14 raise new matters, they complain that the district court did not permit Plaintiff to
15 attach an affidavit to his response to Defendant’s second motion for summary
16 judgment. [Motion 1] Plaintiff attached the affidavit to the documents filed here. It
17 is improper to attach materials to documents filed in this Court where the materials
18 were not part of the record below, and we will not consider them. See In re Aaron L.,
19 2000-NMCA-024, ¶ 27, 128 N.M. 641, 996 P.2d 431; Jemko, Inc. v. Liaghat, 106
2 1 N.M. 50, 54, 738 P.2d 922, 927 (Ct. App. 1987). To the extent that Plaintiff seeks to
2 add to his appellate issue an argument that the district court erred by preventing
3 Plaintiff from admitting the affidavit, we deny the motion to amend.
4 In cases assigned to the summary calendar, this Court will grant a motion to
5 amend the docketing statement to include additional issues if the motion (1) is timely,
6 (2) states all facts material to a consideration of the new issues sought to be raised, (3)
7 explains how the issues were properly preserved or why they may be raised for the
8 first time on appeal, (4) demonstrates just cause by explaining why the issues were not
9 originally raised in the docketing statement, and (5) complies in other respects with
10 the appellate rules. See State v. Rael, 100 N.M. 193, 197, 668 P.2d 309, 313 (Ct.
11 App. 1983). This Court will deny motions to amend that raise issues that are not
12 viable, even if they allege fundamental or jurisdictional error. See State v. Moore, 109
13 N.M. 119, 129, 782 P.2d 91, 101 (Ct. App. 1989), overruled on other grounds by State
14 v. Salgado, 112 N.M. 537, 817 P.2d 730 (Ct. App. 1991).
15 Plaintiff’s motion to amend and the amended docketing statement satisfy none
16 of the requirements set forth above. The motion was not timely filed, because it was
17 not filed within the extended time we granted for filing the memorandum in
18 opposition. See Rael, 100 N.M. at 195, 668 P.2d at 311. Plaintiff does not state all
19 the facts material to whether the district court erred by preventing Plaintiff from
3 1 submitting the affidavit. For instance, he does not explain how the district court
2 prevented him from doing so, or the arguments he presented in support of submitting
3 the affidavit, or Defendant’s arguments against it, or the grounds for the district
4 court’s ruling. Lastly, Plaintiff does not state how the matter was properly preserved.
5 For these reasons, we deny the motion to amend the docketing statement to the extent
6 that Plaintiff seeks review of the district court’s refusal to consider the affidavit, and
7 we do not consider the content of the affidavit. We have considered the content of the
8 amended docketing statement to the extent that it reiterates Plaintiff’s appellate
9 arguments, and we examine the merits below.
10 On appeal, Plaintiff challenges the district court’s order granting summary
11 judgment and awarding sanctions, arguing that he was not given a full and fair
12 opportunity to litigate the merits of his case. [DS 4] In the docketing statment,
13 Plaintiff framed the issue as one of res judicata and collateral estoppel. [DS 4-6] He
14 argued that the district court should not have precluded him from litigating against
15 Defendant, because the parties in the two actions are different, the amount of damages
16 alleged in the two actions were different, the claims were different in nature and did
17 not arise out of the same transaction, the claims were initiated at different times, and
18 the other action was settled before trial. [DS 4-5]
4 1 Our notice clarified that this matter is governed, not by principles of res judicata
2 or collateral estoppel, but by contract law. See Branch v. Chamisa Dev. Corp.,
3 2009-NMCA-131, ¶ 33, 147 N.M. 397, 223 P.3d 942 (“A settlement agreement is a
4 species of contract.” (alterations omitted) (internal quotation marks and citation
5 omitted)), cert. denied, 2009-NMCERT-011, ___ N.M. ___, ___ P.3d ___ (No.
6 31,987, Nov. 4, 2009); Hansen v. Ford Motor Co., 120 N.M. 203, 206, 900 P.2d 952,
7 955 (1995) (observing that releases are generally interpreted using contract law). We
8 explained that the district court was not enforcing a court judgment against Plaintiff
9 from a previous action. It was enforcing a settlement agreement between Plaintiff and
10 Mr. Sutton, relating to the work Plaintiff and Defendant had done for Mr. Sutton. [RP
11 328] Plaintiff’s inability to fully litigate the merits of this case against Defendant was
12 not the result of a full and fair litigation of the issues, but an agreement not to litigate
13 against Defendant.
14 As the burden rests with the movant for summary judgment, the burden is also
15 on the third-party beneficiary of a contract to show that he or she was intended by the
16 makers of the agreement to benefit from the agreement. See Hansen, 120 N.M. at 206,
17 900 P.2d at 955; see also Roth v. Thompson, 113 N.M. 331, 334-35, 825 P.2d 1241,
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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 STEVEN STONE, an 8 individual, d/b/a STONE 9 PLUMBING,
10 Plaintiff-Appellant,
11 v. NO. 30,085
12 WILEY MUNSEY, an 13 individual, d/b/a MUNSEY 14 CONSTRUCTION, LLC,
15 Defendant-Appellee.
16 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 17 Jerry H. Ritter, Jr., District Judge
18 Steven R. Stone 19 Cloudcroft, NM
20 Pro Se Appellant
21 Adam D. Rafkin 22 Ruidoso, NM
23 for Appellee
24 MEMORANDUM OPINION
25 FRY, Chief Judge. 1 Plaintiff, pro se, appeals from the district court’s order granting Defendant’s
2 motion for summary judgment and motion for Rule 1-011 NMRA sanctions. We
3 issued a notice of proposed summary disposition, proposing to affirm. Plaintiff has
4 responded to our notice with a memorandum in opposition, an affidavit, a motion to
5 amend the docketing statement, and an amended docketing statement. We have
6 considered Plaintiff’s arguments, and remain unpersuaded. We, therefore, deny the
7 motion to amend and affirm.
8 It is not clear whether the motion to amend the docketing statement and the
9 amended docketing statement seek to add an issue to the original docketing statement,
10 which is the proper purpose for such a motion. Rather, in these documents, Plaintiff
11 articulates his appellate issue differently, acknowledging, based on our proposed
12 analysis, that the district court’s ruling and Plaintiff’s appellate issues are grounded,
13 not in principles of res judicata, but in contract law. To the extent that the documents
14 raise new matters, they complain that the district court did not permit Plaintiff to
15 attach an affidavit to his response to Defendant’s second motion for summary
16 judgment. [Motion 1] Plaintiff attached the affidavit to the documents filed here. It
17 is improper to attach materials to documents filed in this Court where the materials
18 were not part of the record below, and we will not consider them. See In re Aaron L.,
19 2000-NMCA-024, ¶ 27, 128 N.M. 641, 996 P.2d 431; Jemko, Inc. v. Liaghat, 106
2 1 N.M. 50, 54, 738 P.2d 922, 927 (Ct. App. 1987). To the extent that Plaintiff seeks to
2 add to his appellate issue an argument that the district court erred by preventing
3 Plaintiff from admitting the affidavit, we deny the motion to amend.
4 In cases assigned to the summary calendar, this Court will grant a motion to
5 amend the docketing statement to include additional issues if the motion (1) is timely,
6 (2) states all facts material to a consideration of the new issues sought to be raised, (3)
7 explains how the issues were properly preserved or why they may be raised for the
8 first time on appeal, (4) demonstrates just cause by explaining why the issues were not
9 originally raised in the docketing statement, and (5) complies in other respects with
10 the appellate rules. See State v. Rael, 100 N.M. 193, 197, 668 P.2d 309, 313 (Ct.
11 App. 1983). This Court will deny motions to amend that raise issues that are not
12 viable, even if they allege fundamental or jurisdictional error. See State v. Moore, 109
13 N.M. 119, 129, 782 P.2d 91, 101 (Ct. App. 1989), overruled on other grounds by State
14 v. Salgado, 112 N.M. 537, 817 P.2d 730 (Ct. App. 1991).
15 Plaintiff’s motion to amend and the amended docketing statement satisfy none
16 of the requirements set forth above. The motion was not timely filed, because it was
17 not filed within the extended time we granted for filing the memorandum in
18 opposition. See Rael, 100 N.M. at 195, 668 P.2d at 311. Plaintiff does not state all
19 the facts material to whether the district court erred by preventing Plaintiff from
3 1 submitting the affidavit. For instance, he does not explain how the district court
2 prevented him from doing so, or the arguments he presented in support of submitting
3 the affidavit, or Defendant’s arguments against it, or the grounds for the district
4 court’s ruling. Lastly, Plaintiff does not state how the matter was properly preserved.
5 For these reasons, we deny the motion to amend the docketing statement to the extent
6 that Plaintiff seeks review of the district court’s refusal to consider the affidavit, and
7 we do not consider the content of the affidavit. We have considered the content of the
8 amended docketing statement to the extent that it reiterates Plaintiff’s appellate
9 arguments, and we examine the merits below.
10 On appeal, Plaintiff challenges the district court’s order granting summary
11 judgment and awarding sanctions, arguing that he was not given a full and fair
12 opportunity to litigate the merits of his case. [DS 4] In the docketing statment,
13 Plaintiff framed the issue as one of res judicata and collateral estoppel. [DS 4-6] He
14 argued that the district court should not have precluded him from litigating against
15 Defendant, because the parties in the two actions are different, the amount of damages
16 alleged in the two actions were different, the claims were different in nature and did
17 not arise out of the same transaction, the claims were initiated at different times, and
18 the other action was settled before trial. [DS 4-5]
4 1 Our notice clarified that this matter is governed, not by principles of res judicata
2 or collateral estoppel, but by contract law. See Branch v. Chamisa Dev. Corp.,
3 2009-NMCA-131, ¶ 33, 147 N.M. 397, 223 P.3d 942 (“A settlement agreement is a
4 species of contract.” (alterations omitted) (internal quotation marks and citation
5 omitted)), cert. denied, 2009-NMCERT-011, ___ N.M. ___, ___ P.3d ___ (No.
6 31,987, Nov. 4, 2009); Hansen v. Ford Motor Co., 120 N.M. 203, 206, 900 P.2d 952,
7 955 (1995) (observing that releases are generally interpreted using contract law). We
8 explained that the district court was not enforcing a court judgment against Plaintiff
9 from a previous action. It was enforcing a settlement agreement between Plaintiff and
10 Mr. Sutton, relating to the work Plaintiff and Defendant had done for Mr. Sutton. [RP
11 328] Plaintiff’s inability to fully litigate the merits of this case against Defendant was
12 not the result of a full and fair litigation of the issues, but an agreement not to litigate
13 against Defendant.
14 As the burden rests with the movant for summary judgment, the burden is also
15 on the third-party beneficiary of a contract to show that he or she was intended by the
16 makers of the agreement to benefit from the agreement. See Hansen, 120 N.M. at 206,
17 900 P.2d at 955; see also Roth v. Thompson, 113 N.M. 331, 334-35, 825 P.2d 1241,
18 1244-45 (1992) (“The movant need only make a prima facie showing that he is
19 entitled to summary judgment. Upon the movant making a prima facie showing, the
5 1 burden shifts to the party opposing the motion to demonstrate the existence of specific
2 evidentiary facts which would require trial on the merits.” (citation omitted)).
3 “A prospective third-party beneficiary may prove the intent of the parties to an
4 agreement by relying on the unambiguous language of the agreement itself or, in the
5 absence of such language, on extrinsic evidence such as the circumstances
6 surrounding the execution of the agreement[.]” Hansen, 120 N.M. at 205, 900 P.2d
7 at 954 (citation omitted). Our notice proposed to hold that the plain language of the
8 release is unambiguous. “When a contract or agreement is unambiguous, we interpret
9 the meaning of the document and the intent of the parties according to the clear
10 language of the document, and we enforce the contract or agreement as written.”
11 Espinosa v. United of Omaha Life Ins. Co., 2006-NMCA-075, ¶ 26, 139 N.M. 691,
12 137 P.3d 631.
13 In his memorandum in opposition, Plaintiff asserts that the intent of the parties
14 was to release Mr. Sutton, not Defendant, and complains that Defendant relies on
15 boilerplate language in the agreement and no evidence. [MIO 2-3] Plaintiff also
16 complains that the district court did not consider the conduct and practice of the
17 parties in construing the settlement agreement to arrive at the intent of the parties.
18 [MIO 3] A court is not obligated to do so, however, where there is a clear and broad
19 release that is subject to only one interpretation. See Branch, 2009-NMCA-131, ¶ 34.
6 1 Under those circumstances, “a court may decide the meaning of those terms as a
2 matter of law.” C.R. Anthony Co. v. Loretto Mall Partners, 112 N.M. 504, 509-10,
3 817 P.2d 238, 243-44 (1991). Also, we note that Plaintiff has not explained what
4 specific facts beyond the language of the release the district court should have
5 considered and how they would have changed the result.
6 Most importantly, Plaintiff does not explain why he believes the language is
7 ambiguous or otherwise subject to another interpretation, and what arguments he
8 made in this regard to the district court. We do not agree that the relevant language
9 in the release is boilerplate and requires clarification. The release states that in
10 exchange for Mr. Sutton’s payment to Plaintiff, Plaintiff releases Mr. Sutton and his
11 agents and employees from any claims, actions or liabilities that Plaintiff has or has
12 held against Mr. Sutton arising out of the two cases listed. [RP 328] One of the cases
13 listed names Defendant, which, the record indicates, involves the same complaint
14 Plaintiff filed against Defendant in the current action. [RP 328, 371] There is no
15 indication that Plaintiff has claims against Defendant for anything outside of
16 Plaintiff’s and Defendant’s contracted work on Mr. Sutton’s home. The district court
17 found that Mr. Sutton had a contingent obligation for anything Defendant might be
18 found responsible, and that Plaintiff should have known that he had no claim against
19 Defendant after entering the settlement agreement. [RP 380] Plaintiff has not
7 1 explained specifically why this is an erroneous assessment. We see no reason why the
2 release is anything other than a clear and unambiguous expression of the intent of the
3 parties to release Defendant from Plaintiff’s current claims. [RP 328, 380]
4 For these reasons and those stated in our notice, we affirm the district court’s
5 order granting summary judgment in favor of Defendant and awarding sanctions.
6 IT IS SO ORDERED.
7 8 CYNTHIA A. FRY, Chief Judge
9 WE CONCUR:
10 11 MICHAEL D. BUSTAMANTE, Judge
12 13 CELIA FOY CASTILLO, Judge