J Menke v. P Gaddy ( 2009 )

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 JAMES BRYAN MENKE,
3 Plaintiff-Appellant,
4 v. NO. 28,940
5 PHILIP C. GADDY, BERNARD FENENBOCK,
6 GLENNA GADDY, LANE GADDY, WESTON
7 GADDY, GADDY LAW FIRM,
8 Defendants-Appellees.
9 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
10 Richard J. Knowles, District Judge
11 James Bryan Menke
12 Albuquerque, NM
13 Pro Se Appellant
14 Philip C. Gaddy
15 Lane Gaddy
16 Weston Gaddy
17 Albuquerque, NM
18 Bernard Fenenbock
19 El Paso, TX
20 Pro Se Appellees
21 MEMORANDUM OPINION
1 CASTILLO, Judge.
2 Appellant, pro se, appeals from the district court’s order dismissing his
3 complaint. This Court’s first notice proposed summary affirmance on the basis that
4 Appellant failed to include the information necessary to determine the issues raised.
5 Appellant filed a memorandum in opposition to the proposed disposition. Because
6 Appellant has not provided the information requested by this Court, we affirm the
7 district court’s order.
8 The first notice of proposed disposition expressly requested that Appellant
9 inform this Court of the exact claims brought in the prior litigation, who brought them,
10 in what capacity they were brought, against whom they were brought, and whether
11 they were resolved. Appellant needed only to name the specific claims brought in the
12 prior litigation and show that those claims were not resolved or that they were
13 different from the claims asserted in this case. The memorandum in opposition asserts
14 that the information requested by this Court is contained in the record proper.
15 However, many of the exhibits and documents referred to in the motions were not
16 made a part of the record. Nevertheless, even absent those documents, Appellant
17 could have met his burden by providing the specific information requested. See State
18 v. Calanche, 91 N.M. 390, 392, 574 P.2d 1018, 1020 (Ct. App. 1978) (stating that
19 factual recitations in the docketing statement are accepted as true unless the record on
2
1 appeal shows otherwise).
2 We presume that the district court is correct. Farmers, Inc. v. Dal Mach. &
3 Fabricating, Inc., 111 N.M. 6, 8, 800 P.2d 1063, 1065 (1990). Therefore, the burden
4 is on Appellant to clearly demonstrate that the district court erred. Id. The docketing
5 statement failed to set out all the relevant facts, and the memorandum in opposition
6 failed to remedy this deficiency, despite this Court’s specific request. See Thornton
7 v. Gamble, 101 N.M. 764, 769, 688 P.2d 1268, 1273 (Ct. App. 1984) (requiring
8 counsel to set out all the relevant facts in the docketing statement ). Therefore, we
9 conclude that Appellant has not met his burden of showing that the district court erred
10 in dismissing the complaint.
11 For these reasons and those stated in the first notice, we affirm the district
12 court’s order.
13 IT IS SO ORDERED.
14 ________________________________
15 CELIA FOY CASTILLO, Judge
16 WE CONCUR:
3
1 ________________________________
2 JAMES J. WECHSLER, Judge
3 ________________________________
4 RODERICK T. KENNEDY, Judge
4