Soto v. Ardon-Leon ( 2023 )

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-40778
ERICA SOTO,
Plaintiff-Appellant,
v.
JESUS ARDON-LEON and MGA AUTO
INSURANCE INC. (GAINSCO AUTO
INSURANCE),
Defendants-Appellees.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Bryan Biedscheid, District Court Judge
John A. Aragon
Santa Fe, NM
for Appellant
Butt, Thornton & Baehr, PC
James H. Johansen
Jason J. Patton
Albuquerque, NM
for Appellees
MEMORANDUM OPINION
IVES, Judge.
{1} Plaintiff appeals from the district court’s order granting Defendants’ motion to
dismiss her complaint for failure to prosecute her claim, pursuant to Rule 1-041(E)(1)
NMRA, and its order denying Plaintiff’s motion for reconsideration. We issued a
calendar notice proposing to affirm. Plaintiff has filed a memorandum in opposition,
which we have duly considered. Unpersuaded, we affirm.
{2} In her memorandum in opposition, Plaintiff continues to assert that the district
court abused its discretion when it dismissed her complaint for lack of prosecution,
pursuant to Rule 1-041(E)(1). [MIO 5-7] Plaintiff attempts to distinguish Benally v.
Pigman, 1967-NMSC-148, ¶ 10, 78 N.M. 189, 429 P.2d 648, arguing that since Benally
was decided, our Supreme Court has “given meaning to the policy that Rule 1-041(E)
should not be applied in complete disregard of this Court’s often stated concerns for the
rights of litigants to have their day in court and their cases decided on the merits and not
trivial technicalities.” [MIO 5-6] See Summit Elec. Supply Co. v. Rhodes & Salmon, P.C.,
2010-NMCA-086, ¶ 14, 148 N.M. 590, 241 P.3d 188 (explaining that Rule 1-041(E) is
intended to promote judicial efficiency, conclude stale cases, but “should not be applied
in complete disregard of this Court’s often stated concerns for the rights of litigants to
have their day in court and their cases decided on the merits and not on trivial
technicalities” (alteration, internal quotation marks, and citation omitted)). Plaintiff also
asserts that the district court did not consider the two-prong test it should have
considered before granting the motion to dismiss. See State ex rel. Reynolds v.
Molybdenum Corp. of Am., 1972-NMSC-027, ¶ 24, 83 N.M. 690, 496 P.2d 1086,
superseded by rule on other grounds as stated in Rodriguez ex rel. Rodarte v. Sanchez,
2019-NMCA-065, 451 P.3d 105 (providing that the district court must determine (1)
whether the plaintiff took timely, significant action to bring their claim to an end and, if
not, (2) whether the plaintiff was excusably prevented from taking such action); see also
Jones v. Montgomery Ward & Co., 1985-NMSC-062, ¶ 10, 103 N.M. 45, 702 P.2d 990(setting forth factors for the district court to consider when evaluating whether there was
timely, significant action).
{3} Although Plaintiff is correct that Rule 1-041(E) should be used sparingly so as to
give litigants their day in court, we remain persuaded that the actions taken by Plaintiff
in this case were not timely and cannot be considered as “significant action.” See
Reynolds, 1972-NMSC-027, ¶ 10. As we set forth in our proposed disposition, Plaintiff’s
counsel attempted to locate and serve Defendant Ardon-Leon, which led to a delay and
“prevented Plaintiff from taking any significant action[.]” [MIO 2] Apart from the discovery
requests to which Plaintiff responded, and the service by publication, Plaintiff took no
other action to move the case forward until the district court filed a notice of inactivity.
[CN 4] At that point, Plaintiff’s counsel requested a scheduling conference, at which he
failed to appear, and he did not request another one until after Defendants filed their
motion to dismiss. [CN 4-6] In her memorandum in opposition, Plaintiff does not dispute
these facts, nor does she point to new facts or authority to persuade us that our
proposed disposition was erroneous. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24,
124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly held that, in summary
calendar cases, the burden is on the party opposing the proposed disposition to clearly
point out errors in fact or law.”).
{4} Plaintiff also argues that the record proper does not reflect the work she and her
counsel put into preparing her case and that her counsel did take significant action to
bring the case to trial. [MIO 2, 6-7] Specifically, Plaintiff maintains that “all trial
preparations could be accomplished, and a case fully tried and concluded, except for
the entry of judgment, when the time expires under Rule [1-0]41(E)” and that there
“could properly be nothing in the court file other than the complaint, summons and
return thereon, and the answer to the complaint.” [MIO 6-7] Plaintiff further asserts that
she and her counsel “prepared their whole case for trial” and that the district court “was
informed that [P]laintiff’s case was ready for trial.” [MIO 2] Finally, Plaintiff states that
“[t]his is information that would have been offered into evidence at hearing to
demonstrate significant actions taken by Plaintiff to finish the case.” [MIO 3] Despite her
new assertions to this Court that she was prepared for trial, Plaintiff has not shown that
this argument was raised before the district court. In her response to Defendants’
motion to dismiss for lack of prosecution, Plaintiff argued that her counsel took
significant action when he attempted to locate and serve Defendant Ardon-Leon and
that her counsel failed to attend the scheduling conference due to an unforeseen
medical complication. [RP 65-67] However, despite Plaintiff’s assertions in her
memorandum in opposition, she has not demonstrated that she alerted the district court
that she was prepared to go to trial. “It is not our practice to rely on assertions of
counsel unaccompanied by support in the record. The mere assertions and arguments
of counsel are not evidence.” Chan v. Montoya, 2011-NMCA-072, 150 N.M. 44, 256
P.3d 987 (internal quotation marks and citation omitted). We are unpersuaded that
Plaintiff has demonstrated that she presented this argument to the district court such
that it was preserved. See Benz v. Town Ctr. Land, LLC, 2013-NMCA-111, ¶ 24, 314
P.3d 688 (“To preserve an issue for review on appeal, it must appear that appellant
fairly invoked a ruling of the trial court on the same grounds argued in the appellate
court.” (internal quotation marks and citation omitted)); Losey v. Norwest Bank of N.M.,
N.A. (In re Norwest Bank of N.M., N.A.), 2003-NMCA-128, ¶ 30, 134 N.M. 516, 80 P.3d
98 (stating that this Court will not search the record for evidence of preservation).
Accordingly, we conclude that the district court did not abuse its discretion in dismissing
Plaintiff’s case for lack of prosecution.
{5} Plaintiff also continues to maintain that the district court erred in failing to conduct
a hearing on Defendants’ motion to dismiss. [MIO 7] Plaintiff cites to a prior version of
Rule 1-041(E)(1) in support of her argument that the “rule contemplates a hearing upon
a motion to dismiss at which the parties may present evidence.” [MIO 7] In addition,
Plaintiff argues that under the local rules, a movant must request a hearing, and
because Defendants did not do so, “Plaintiff was deprived of her right to a hearing.”
[MIO 3-4] She points to Local Rule 1-306, which she asserts governs “package
procedure,” and asserts that “the movant shall submit to the court a copy of the motion,
response and reply and a request for a hearing.” [MIO 4] Plaintiff, however, cites to the
wrong rule. Local Rule 1-201, which governs motion practice, instead provides what the
“package procedure” requires. Specifically, Local Rule 1-201 states that “the movant
shall submit to the judge assigned to the case a copy of the motion, any response, any
reply, and a copy of a request for hearing . . . and notice of hearing form, if a party is
seeking a hearing, in a package.” (Emphases added.) The language of Local Rule 1-
201 directly contradicts Plaintiff’s assertion that the movant must request a hearing.
Here, Defendants did not request a hearing, which is allowed by the rule, and the district
court did not hold one. As Plaintiff has not provided us with any other facts or authority
to persuade us that our proposed disposition was erroneous, we conclude that the
district court did not abuse its discretion in resolving this matter on the pleadings.
{6} Finally, this Court’s proposed summary disposition proposed to conclude that
Plaintiff failed to demonstrate that the district court abused its discretion when it
dismissed her case without providing factual findings or conclusions of law, without
considering lesser sanctions, and without any showing that Defendants had suffered
any prejudice from the delay. [CN 8] In addition, this Court proposed to conclude that
there was no excusable neglect where counsel failed to take action to move the case
toward a final determination. [CN 9-10] Plaintiff has not responded to our notice of
proposed summary affirmance on these issues in her memorandum in opposition. See
Taylor v. Van Winkle’s Iga Farmer’s Mkt., 1996-NMCA-111, ¶ 5, 122 N.M. 486, 927
P.2d 41 (recognizing that issues raised in a docketing statement, but not contested in a
memorandum in opposition are abandoned).
{7} For the reasons stated in our notice of proposed disposition and herein, we affirm
the district court’s dismissal of Plaintiff’s complaint for failure to prosecute her claim, and
its order denying Plaintiff’s motion for reconsideration.
{8} IT IS SO ORDERED.
ZACHARY A. IVES, Judge
WE CONCUR:
JENNIFER L. ATTREP, Chief Judge
MEGAN P. DUFFY, Judge