N Lewis v. C Padilla ( 2009 )

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 NANCY LEWIS,
3 Plaintiff-Appellant,
4 v. NO. 29,542
5 CINDY PADILLA, NANCY
6 SCHUMWAY, et al.,
7 Defendants-Appellees.
8 APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY
9 James A. Hall, District Judge
10 Nancy Lewis
11 Española, NM
12 Pro Se Appellant
13 Long, Pound & Komer, P.A.
14 Little V. West
15 Santa Fe, NM
16 for Appellee
17 MEMORANDUM OPINION
18 VIGIL, Judge.
19 Plaintiff Nancy Lewis appeals the district court order dismissing her complaint
20 with prejudice. We issued a calendar notice proposing to summarily affirm the district
1 court. Plaintiff filed a timely memorandum in opposition, which we have duly
2 considered. Unpersuaded, we affirm.
3 DISCUSSION
4 Plaintiff, appearing pro se, filed a complaint against Defendants, employees of
5 the New Mexico Aging and Long-Term Services Department, alleging fraud, abuse,
6 and negligence on behalf of David Montoya. [RP 1-4] The complaint asks the district
7 court to locate Montoya and to award him compensatory and punitive damages. [Id.
8 4] The district court granted Defendants’ motion to dismiss on grounds that Plaintiff
9 lacks standing. [Id. 43-44] The district court also concluded that Defendants are
10 immune from suit pursuant to the Tort Claims Act. [Id.] See NMSA 1978, § 41-4-4
11 (2001). Our calendar notice proposed to affirm the district court on both grounds. We
12 remain persuaded that our proposed disposition is correct. However, because the
13 standing issue is dispositive, we need not address immunity.
14 Plaintiff’s complaint alleges that Montoya had been harmed and seeks relief for
15 him. [RP 1-4] Plaintiff named herself as the plaintiff and signed the complaint in her
16 name, identifying herself as a pro se party. [Id. 4] Plaintiff did not request any relief
17 for herself. Our calendar notice noted that Plaintiff is not an attorney and that it did
18 not appear that she presented the district court with any authority that would allow her
19 to file a lawsuit on behalf of Montoya. [CN 3] The response does not claim that
2
1 Plaintiff has any such authority. As we noted, this Court has made it clear that a non-
2 attorney may not represent another person in a legal proceeding. Chisholm v.
3 Rueckhaus, 1997-NMCA-112, ¶ 5, 124 N.M. 255, 948 P.2d 707. [Id.] Accordingly,
4 we hold that the district court correctly determined that Plaintiff had no authority to
5 represent Montoya.
6 Our calendar notice also noted that Plaintiff did not claim in her complaint that
7 she was harmed, but appeared to claim for the first time on appeal that she
8 experienced pain and suffering and was entitled to a percentage of Montoya’s
9 damages. [Id. 2-3] We proposed to conclude that we would not consider Plaintiff’s
10 claim that she was harmed because it was not raised below. See Woolwine v. Furr’s,
11 Inc., 106 N.M. 492, 496, 745 P.2d 717, 721 (Ct. App. 1987) (setting forth that “[t]o
12 preserve an issue for review on appeal, it must appear that appellant fairly invoked a
13 ruling of the trial court on the same grounds argued in the appellate court”). [Id. 3]
14 We also expressed doubt about whether Plaintiff would be able to demonstrate that
15 she suffered a cognizable injury of her own. [Id.] In response, Plaintiff concedes that
16 she did not raise the issue of her pain and suffering below. [MIO 2] She claims that
17 her omission was “because until she knew that he was alive, she would not have been
18 able to articulate her fears.” [Id.] We do not find this argument helpful to Plaintiff’s
3
1 attempts to claim a cognizable injury. We remain persuaded that the district court
2 could properly dismiss the complaint because Plaintiff lacked standing.
3 We note that Plaintiff has attempted to remedy the deficiencies in her complaint
4 on appeal by adding Montoya’s name to the complaint and signing for him. Plaintiff
5 admits that her original complaint was filed and signed by her but asserts that the copy
6 of the complaint attached to the docketing statement was signed by Montoya. [Id. 1-2]
7 We understand Plaintiff to argue that we should consider the co-signed complaint
8 submitted on appeal as amending the original complaint. However, it is improper for
9 Plaintiff to attach to her docketing statement and response documents which are not
10 part of the record on appeal. See Jemko, Inc. v. Liaghat, 106 N.M. 50, 54, 738 P.2d
11 922, 927 (Ct. App. 1987). This Court will not consider and Plaintiff should not refer
12 to matters not of record. In re Aaron L., 2000-NMCA-024, ¶ 27, 128 N.M. 641, 996
13 P.2d 431. Moreover, the addition of Montoya’s name would not change our
14 determination that Plaintiff lacks standing and cannot represent Montoya.
15 For these reasons, we remain persuaded that the district court properly
16 dismissed Plaintiff’s complaint. We find it unnecessary to address the issue of
4
1 immunity. We affirm.
2 IT IS SO ORDERED.
3
4 MICHAEL E. VIGIL, Judge
5 WE CONCUR:
6
7 CELIA FOY CASTILLO, Judge
8
9 LINDA M. VANZI, Judge
5