Murphy v. Lash ( 2023 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: _______________
3 Filing Date: October 26, 2023
4 No. A-1-CA-39628
5 DENNIS P. MURPHY, Personal
6 Representative of the ESTATE
7 OF TIFFANY STONE, Deceased,
8 Plaintiff-Appellant,
9 v.
10 JAMES R. LASH, D.O.; SHAHRIAR
11 ANOUSHFAR, D.O., F.A.C.S.; and
12 JOHN DOES 1-5,
13 Defendants-Appellees.
14 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
15 Eileen P. Riordan, District Court Judge
16 Sandoval Firm
17 Richard A. Sandoval
18 Santa Fe, NM
19 Collins & Collins, P.C.
20 Parrish Collins
21 Albuquerque, NM
22 for Appellant
1 Miller Stratvert PA
2 Stephen M. Williams
3 Thomas R. Mack
4 Kendall M. Barnett
5 Albuquerque, NM
6 for Appellee James R. Lash, D.O.
7 Hinkle Shanor LLP
8 Kathleen Wilson
9 Hari-Amrit Khalsa
10 Albuquerque, NM
11 for Appellee Shahriar Anoushfar, D.O.
1 OPINION
2 HENDERSON, Judge.
3 {1} Plaintiff Dennis Murphy appeals from two district court orders. First is an
4 order granting summary judgment in favor of Defendant Shahriar Anoushfar, D.O.,
5 in which the district court concluded that Plaintiff’s claims against him were time
6 barred by the two-year statute of limitations in the New Mexico Tort Claims Act
7 (TCA), NMSA 1978, §§ 41-4-1 to -27 (1976, as amended through 2020). Second is
8 an order dismissing Defendant James Lash, D.O., for Plaintiff’s failure to serve
9 process with reasonable diligence under Rule 1-004(C)(2) NMRA. As to the motion
10 for summary judgment, Plaintiff argues that the district court erred in concluding
11 that the complaint was untimely because Dr. Anoushfar failed to present evidence
12 that he was a public employee under the TCA. As to the motion to dismiss, Plaintiff
13 argues that the district court erred because Dr. Lash failed to demonstrate prejudice
14 caused by any delay in service. We reverse in part, concluding that Dr. Anoushfar
15 did not present evidence sufficient to show that he was a public employee, and we
16 therefore remand to the district court for further proceedings consistent with this
17 opinion. We otherwise affirm the district court’s dismissal of Dr. Lash due to
18 Plaintiff’s extreme and unjustified delay in serving process.
1 BACKGROUND
2 {2} In 1989, the Legislature created the Artesia Special Hospital District (ASHD),
3 pursuant to the Special Hospital District Act, NMSA 1978, §§ 4-48A-1 to -30 (1978,
4 as amended through 2019). Section 4-48A-3.1. The Special Hospital District Act
5 gives ASHD the power to “lease a hospital to any person, corporation or association
6 for the operation and maintenance of the hospital.” Section 4-48A-9(M). ASHD did
7 so, and agreed to let VHA Southwest Community Hospital Corporation (CHC), a
8 nonprofit corporation, run a hospital in the district. The agreement provides that
9 CHC is responsible for operating the hospital through another nonprofit corporation,
10 the Artesia General Hospital (AGH), of which CHC is a member.
11 {3} On September 1, 2016, Plaintiff filed a complaint in Eddy County alleging
12 medical malpractice and other claims arising from treatment received by Decedent
13 Tiffany Stone at AGH in September and October 2013. Plaintiff sued AGH,
14 Dr. Anoushfar, who allegedly performed the surgery on Stone, and Dr. Lash, who
15 allegedly interpreted Stone’s CT scans. Plaintiff later voluntarily dismissed AGH
16 from the suit. Because the two remaining defendants were dismissed at different
17 times and for different reasons, we discuss the relevant background for each
18 separately.
2
1 I. Dr. Anoushfar
2 {4} Dr. Anoushfar moved for summary judgment on all claims based on his
3 asserted status as a public employee. Dr. Anoushfar asserted it was undisputed that
4 ASHD was a governmental entity under the TCA, and that ASHD retained powers
5 to control aspects of AGH under the operating agreement, such as control over the
6 physical assets of AGH, and provided 15 percent of AGH’s operating budget. He
7 also noted that AGH’s board of directors is “comprised of at least six members who
8 are residents of the ASHD,” two from the hospital staff, and one from CHC.
9 According to Dr. Anoushfar, the retained powers, funding, and composition of the
10 board of directors were sufficient to make AGH a governmental entity under the
11 TCA, despite AGH itself being a nonprofit corporation. Since AGH was a
12 governmental entity, and Dr. Anoushfar was its employee, Dr. Anoushfar argued
13 that the TCA’s two-year statute of limitations applied to Plaintiff’s claims against
14 him. Plaintiff’s claims were thus untimely because he filed his complaint more than
15 two years after Stone’s last visit with Dr. Anoushfar. Plaintiff responded by arguing
16 that AGH maintained its status as a private entity despite ASHD’s involvement
17 because, under the operating agreement, CHC maintained substantial power over
18 AGH. Plaintiff provided a number of alternative arguments too, including that
19 Dr. Anoushfar was in fact an independent contractor, that he should be equitably
3
1 estopped from asserting the statute of limitations, and that the statute should
2 otherwise be equitably tolled.
3 {5} The district court granted Dr. Anoushfar’s motion. The district court’s order
4 contains no statement of undisputed facts or conclusions of law, nor does it provide
5 any reasoning. The district court’s oral pronouncement at a hearing on
6 Dr. Anoushfar’s motion is similarly devoid of detail. The district court ruled from
7 the bench that AGH fell under the ambit of the TCA and that the complaint was
8 untimely. Plaintiff’s claims against Dr. Anoushfar were thus dismissed.
9 II. Dr. Lash1
10 {6} On the same day Plaintiff filed the complaint, a summons was issued for
11 Dr. Lash. Three months later, Plaintiff wrote to Dr. Lash’s attorney that he “would
12 appreciate it” if the attorney “would accept service of the Eddy County action on
13 [Dr. Lash’s] behalf so as to avoid pursuing him in his current medical practice.”
14 Dr. Lash’s attorney responded that “he was not authorized to accept service.” Nearly
15 twelve months after Plaintiff received that response, he paid the sheriff’s office in
16 Mohave County, Arizona, to attempt to serve Dr. Lash there. Service was
17 unsuccessful. Another four months passed before Plaintiff tried again, this time at a
We take the following facts as they were found in the district court’s order
1
granting Dr. Lash’s motion to dismiss. Plaintiff has not challenged the district court’s
findings of fact, and we are bound by them on appeal. See Seipert v. Johnson, 2003-
NMCA-119, ¶ 26, 134 N.M. 394, 77 P.3d 298.
4
1 new address in Florida. This attempt was also unsuccessful, but Plaintiff learned that
2 Dr. Lash was now residing in California. Roughly a month later Plaintiff finally
3 served Dr. Lash in California, on July 10, 2018, nearly two years after the complaint
4 was filed.
5 {7} Dr. Lash moved pursuant to Rule 1-012(B)(5) NMRA to dismiss the claims
6 against him for insufficient service of process, arguing that Plaintiff’s delays in
7 effectuating service demonstrated a lack of reasonable diligence. Plaintiff contended
8 in response that his attempts to serve process were reasonable because of Dr. Lash’s
9 “refusal” to authorize his attorney to accept service and because Dr. Lash suffered
10 no prejudice by the delay since “no discovery ha[d] taken place” yet. Plaintiff also
11 asserted that the motion to dismiss was “moot,” as Dr. Lash had filed an answer to
12 the complaint while the motion was pending. After a hearing, the district court
13 granted Dr. Lash’s motion. The district court determined that Dr. Lash’s motion was
14 not moot and that he need not “show actual prejudice.” The court noted that there
15 was no evidence indicating Dr. Lash intentionally evaded service and that there were
16 months-long periods where Plaintiff seemingly took no action to effectuate service.
17 It concluded that Plaintiff failed to exercise due diligence and Dr. Lash was
18 prejudiced as a result, relying on an opinion from the Court of Appeals for the Fifth
19 Circuit that held delay alone may prejudice a defendant. See Veazey v. Young’s Yacht
5
1 Sale & Serv., Inc., 644 F.2d 475, 477-78 (5th Cir. 1981). Plaintiff’s claims against
2 Dr. Lash were accordingly dismissed.
3 DISCUSSION
4 {8} We first address whether summary judgment was proper. As we explain
5 below, whether the TCA applies to AGH depends on its involvement with ASHD.
6 While evidence concerning ASHD’s powers in its operating agreement with CHC
7 and other evidence of its potential intertwinement with AGH is relevant, the law
8 requires evidence of actual day-to-day interactions between the entities, regardless
9 of how much potential control ASHD may have over AGH. See Mem’l Med. Ctr.,
10 Inc. v. Tatsch Constr., Inc., 2000-NMSC-030, ¶¶ 35-36, 129 N.M. 677, 12 P.3d 431.
11 In his motion, Dr. Anoushfar did not make any showing as to the actual day-to-day
12 interactions between the entities, and thus did not provide sufficient evidence to
13 establish that AGH is subject to the TCA. Accordingly, the district court erred by
14 holding Plaintiff’s claims were time barred by the TCA’s two-year statute of
15 limitations. We next address whether Plaintiff’s claims against Dr. Lash were
16 properly dismissed. Finding Plaintiff’s arguments unpersuasive in light of New
17 Mexico case law on the issue, we conclude that the district court did not abuse its
18 discretion in concluding that Plaintiff failed to serve Dr. Lash with reasonable
19 diligence and dismissing the claims against him.
6
1 I. Motion for Summary Judgment
2 {9} Plaintiff’s arguments on appeal regarding the district court’s grant of
3 summary judgment mirror those brought before the district court below, namely, that
4 the TCA does not apply because Dr. Anoushfar is not a public employee.
5 Dr. Anoushfar responds by relying on ASHD’s powers under the operating
6 agreement and AGH’s finances to demonstrate that the TCA does apply. “Summary
7 judgment is appropriate where there are no genuine issues of material fact and the
8 movant is entitled to judgment as a matter of law.” Self v. United Parcel Serv., Inc.,
9 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582; see Rule 1-056(C) NMRA. “We
10 review these legal questions de novo.” Self, 1998-NMSC-046, ¶ 6. “The movant
11 need only make a prima facie showing that he is entitled to summary judgment.
12 Upon the movant making a prima facie showing, the burden shifts to the party
13 opposing the motion to demonstrate the existence of specific evidentiary facts which
14 would require trial on the merits.” Bank of N.Y. Mellon v. Lopes, 2014-NMCA-097,
15 ¶ 6, 336 P.3d 443 (internal quotation marks and citation omitted).
16 {10} Under the TCA, a plaintiff has two years to bring claims against governmental
17 entities and their employees. Section 41-4-15(A). A “governmental entity” is “the
18 state or any local public body.” Section 41-4-3(B). The TCA further defines “local
19 public body” in relevant part as “all political subdivisions of the state and their
20 agencies, instrumentalities and institutions.” Section 41-4-3(C). The TCA only
7
1 applies to public employees who are “acting within the scope of [their] employment
2 and in furtherance of the business of a public entity.” Silva v. State, 1987-NMSC-
3 107, ¶ 15, 106 N.M. 472, 745 P.2d 380.
4 {11} New Mexico law currently recognizes two ways in which an entity is
5 considered a governmental entity under the TCA. The first way is when the entity is
6 a governmental entity as a matter of law, either as a result of its particular status or
7 by definition. For example, in Kreutzer v. Aldo Leopold High School, this Court held
8 that charter schools in New Mexico are governmental entities subject to the TCA.
9 2018-NMCA-005, ¶¶ 41-42, 409 P.3d 930. This is because the Charter Schools Act,
10 NMSA 1978, §§ 22-8B-1 to -17.1 (1999, as amended through 2023), and numerous
11 other statutes, equate charter schools with public schools and impose similar
12 requirements on both. Kreutzer, 2018-NMCA-005, ¶¶ 35-38. Based on that uniform
13 treatment, this Court concluded that charter schools are governmental entities under
14 New Mexico law. See id. ¶ 41; see also Gebler v. Valencia Reg’l Emergency
15 Commc’ns Ctr., 2023-NMCA-70, ¶¶ 2, 9-12, 535 P.3d 763 (holding that a 911
16 communications center, jointly created by public bodies, was a governmental entity
17 due to its identical duties and powers to provide emergency communications
18 services as a public entity under the Enhanced 911 Act, NMSA 1978, §§ 63-9D-1 to
19 -11.1 (1989, as amended through 2017), and Joint Powers Agreements Act, NMSA
20 1978, §§ 11-1-1 to -7 (1961, as amended through 2009)); El Dorado Utils., Inc. v.
8
1 Eldorado Area Water & Sanitation Dist., 2005-NMCA-036, ¶ 25, 137 N.M. 217,
2 109 P.3d 305 (recognizing that a water and sanitation district, as “a governmental
3 subdivision of the state,” is a governmental entity subject to the TCA (internal
4 quotation marks and citation omitted)).
5 {12} The second way in which a private entity may be considered a governmental
6 entity is by virtue of the particular relationship between the private entity and the
7 government. In Cole v. City of Las Cruces, our Supreme Court determined that the
8 Rio Grande Natural Gas Association was not an instrumentality of Las Cruces. 1983-
9 NMSC-007, ¶¶ 2, 19, 24, 99 N.M. 302, 657 P.2d 629. An agreement between the
10 city and association gave the city the right “to solely operate and maintain the
11 [a]ssociation’s entire natural gas transmission and distribution system,” and “to
12 supervise, direct and control the employees of the [a]ssociation.” Id. ¶ 19 (internal
13 quotation marks omitted). Despite those broad powers, the Court concluded that the
14 association was “a private corporation and is not the type of ‘instrumentality’
15 contemplated within the context of the [TCA].” Id. While the TCA was held to be
16 inapplicable, the Court nevertheless noted that “[t]here may be situations where a
17 private corporation may be so organized and controlled, and its affairs so conducted,
18 as to make it merely an instrumentality or adjunct of a municipality under the terms
19 of the [TCA].” Id.
9
1 {13} Analytically, this case falls into the second category. Both parties’ arguments
2 focus on the specific relationship between entities, such as AGH’s funding and the
3 operating agreement between ASHD and CHC. Insofar as Dr. Anoushfar recognizes
4 that Section 4-48A-9(M) permits ASHD to “lease a hospital to any person,
5 corporation or association for the operation and maintenance of the hospital,” that
6 statute is silent on whether such a lease makes the lessee a governmental entity. And
7 Dr. Anoushfar’s assertion that “[i]t is in the best interests of ASHD and the
8 community for ASHD [to] ensure that AGH continues to serve as a ‘public hospital
9 facility for the benefit of the inhabitants of the district’” is unsupported by the statute
10 he cites, Section 4-48A-3(A), which simply permits the creation of special hospital
11 districts. Whether AGH is a governmental entity turns on the facts.
12 {14} The question is what facts are required to demonstrate that a private entity is
13 a governmental entity under the TCA. The only authority Plaintiff provides on this
14 issue is Cole. Plaintiff contends that, like the defendant in Cole, ASHD’s retained
15 powers in the operating agreement with CHC are insufficient to make AGH a
16 governmental entity. Dr. Anoushfar turns our attention to Memorial Medical Center,
17 Inc., which is the primary authority he relied on in his motion for summary judgment.
18 In Memorial Medical Center, Inc., our Supreme Court answered what standard must
19 be met before an entity may be considered a “political subdivision” or “local public
20 body,” under the Public Works Minimum Wage Act, NMSA 1978, §§ 13-4-10 to -17
10
1 (1963, as amended through 2022), and the Procurement Code, NMSA 1978, §§ 13-
2 1-28 to -199 (1984, as amended through 2023). Mem’l Med. Ctr, Inc., 2000-NMSC-
3 030, ¶ 1. After examining New Mexico case law, the Court held that “the standard
4 to be applied is whether under the totality of the circumstances the government entity
5 is so intertwined with the private entity that the private entity has become an alter
6 ego of the public entity.” Id. ¶ 35. Significantly, that standard was constructed in
7 large part from TCA jurisprudence, including Cole. Mem’l Med. Ctr., Inc., 2000-
8 NMSC-030, ¶¶ 29-30, 33 (discussing Cole, 1983-NMSC-007, and Tompkins v.
9 Carlsbad Irrigation District, 1981-NMCA-072, 96 N.M. 368, 630 P.2d 767). The
10 TCA’s relevant definition of “local public body” is also identical to the definition
11 used in the Procurement Code when Memorial Medical Center, Inc., was decided.
12 Compare § 41-4-3, with § 13-1-67. Furthermore, nothing in the standard announced
13 by Memorial Medical Center, Inc., or the opinion itself indicates that the standard is
14 limited to the two statutes at issue in that case. Instead, the standard is presented as
15 a generally applicable statement of New Mexico law on the issue of private entities
16 acting like governmental entities, and that standard is in line with our Supreme
17 Court’s understanding of governmental entities in Cole, 1983-NMSC-007, ¶ 19. For
18 those reasons, we apply the standard set forth in Memorial Medical Center, Inc.,
19 here, such that the private entity must, under the totality of the circumstances, be so
11
1 intertwined with the government entity as to become the government’s alter ego for
2 the TCA to apply to the private entity. See 2000-NMSC-030, ¶ 35.
3 {15} Importantly, in Memorial Medical Center, Inc., our Supreme Court rejected
4 the “substantial government involvement” standard used by the district court. Id.5 ¶ 33. Under that standard, a court would balance nine factors to determine whether
6 there is substantial government involvement with the private entity. See id. ¶ 35 n.2.
7 Those factors are (1) “government involvement in the promotion of the concept of a
8 contract or project”; (2) “government participation in the funding of the project”; (3)
9 “financial benefits inuring to a government entity”; (4) “the public purpose of the
10 project”; (5) “continuing control over corporate governance, even if it is potential
11 control”; (6) “continuing control over the current or final disposition of the assets
12 that are or will be the product of the contract or project”; (7) “commingled public
13 and private financing”; (8) “whether the activity of the private entity is conducted
14 on publicly owned property”; and (9) “whether the private entity was created by the
15 public entity.” Id. Our Supreme Court rejected reliance on these factors alone,
16 because they overemphasize potential government involvement without accounting
17 for actual and continuing interactions between the government and the private entity.
18 See id. ¶ 36. The Court explained its reasoning as follows:
19 Regardless of how much authority a lease potentially gives a
20 government entity to control a private entity, if the government entity
21 does not exercise the authority so as to make the private entity a conduit
22 through which the government acts, then the existing statutes governing
12
1 public entities ought not apply. On the other hand, if the contract that
2 creates the relationship provides for no control, but in fact the
3 government exercises control, then the existing statutes governing
4 public entities might apply.
5 Id. Although courts may still look to the nine factors indicating government
6 intertwinement with a private entity, the Court in Memorial Medical Center, Inc.,
7 made clear that courts “must also examine both the potential relationship created by
8 the legal contract that binds the entities and the actual day-to-day relationship
9 among them.” Id. ¶ 35 (emphasis added). “[F]orm does not control over substance;
10 substance must control over form.” Id. ¶ 36.
11 {16} Applying the standard from Memorial Medical Center, Inc., to this case,
12 Dr. Anoushfar failed to present sufficient undisputed facts to demonstrate that
13 ASHD is so intertwined with AGH so as to become its alter ego. As the movant,
14 Dr. Anoushfar had the burden of making a prima facie case of entitlement to
15 summary judgment. See Bank of N.Y. Mellon, 2014-NMCA-097, ¶ 6.
16 Dr. Anoushfar’s motion centered entirely on the nine factors above, and provided no
17 evidence concerning ASHD’s ongoing, day-to-day interactions with AGH or CHC.
18 Nor does he point to any on appeal, despite once again relying on the standard from
19 Memorial Medical Center, Inc. Our review of the record also indicates that the only
20 evidence pertaining to ASHD’s and AGH’s relationship is the operating agreement
21 with CHC and information about ASHD’s finances. But even if the operating
22 agreement provided significant power to ASHD to control AGH, and ASHD’s
13
1 finances contained profits or expenses related to AGH, those facts alone fail to
2 establish the type of actual relationship between the entities necessary to
3 demonstrate that AGH is an alter ego of ASHD. The same stands true even if AGH’s
4 board of directors dictates the hospital’s daily operations, because those directors are
5 chosen from the community, hospital, and CHC, not ASHD. The district court
6 appeared to recognize this lack of evidence when it continued Dr. Anoushfar’s
7 motion pending discovery from Plaintiff concerning just the day-to-day interactions
8 between AGH and ASHD. See Rule 1-056(F). However, the discovery responses
9 Plaintiff received had no information on those interactions—ASHD instead
10 reiterated its retained powers pursuant to the operating agreement with CHC. Absent
11 any facts about ASHD and AGH’s actual and continuing interactions, Dr. Anoushfar
12 cannot demonstrate that AGH is a governmental entity under the TCA and that
13 TCA’s statute of limitations applied to Plaintiff’s claims against him. Accordingly,
14 the district court erred in granting summary judgment, and we reverse for further
15 proceedings consistent with this opinion. Because we reverse on those grounds, we
16 do not address Plaintiff’s other arguments on appeal related to Dr. Anoushfar’s
17 motion for summary judgment.
18 II. Motion to Dismiss for Insufficient Service of Process
19 {17} On appeal, Plaintiff asserts the following to support reversing the district
20 court’s dismissal of Dr. Lash: (1) “Plaintiff’s office was informed [Dr. Lash’s
14
1 counsel] would accept service of process,” (2) “Dr. Lash’s refusal to have his
2 attorney” accept services caused “a nationwide search for Dr. Lash who owns or
3 resided in properties in at least three different states,” and (3) “there was no prejudice
4 to Dr. Lash as no discovery ha[d] taken place.” 2
5 {18} Courts determine whether a plaintiff exercised reasonable diligence in serving
6 process is “based on a standard of objective reasonableness.” Romero v. Bachicha,
7 2001-NMCA-048, ¶ 23, 130 N.M. 610, 28 P.3d 1151 (internal quotation marks and
8 citation omitted). A district court’s determination that a plaintiff failed to act with
9 reasonable diligence under Rule 1-004(C)(2), and whether the complaint should be
10 dismissed as a result, is reviewed only for abuse of discretion. See Martinez v.
11 Segovia, 2003-NMCA-023, ¶ 29, 133 N.M. 240, 62 P.3d 331. An abuse of discretion
12 occurs if, considering the circumstances before the district court, the court “exceeds
13 the bounds of reason.” Summit Elec. Supply Co. v. Rhodes & Salmon, P.C., 2010-
14 NMCA-086, ¶ 6, 148 N.M. 590, 241 P.3d 188 (internal quotation marks and citation
15 omitted).
16 {19} Dr. Lash was not served until nearly two years after the complaint was filed,
17 and nearly five years after the underlying allegations in this case. The district court
18 found that there were months-long periods, one as long as fifteen months, without
Plaintiff does not renew his argument below that Dr. Lash waived or
2
otherwise mooted his motion to dismiss by filing an answer to the complaint while
the motion was pending.
15
1 evidence showing Plaintiff made any efforts to effectuate service. The district court
2 also found that there was no evidence indicating that Dr. Lash attempted to conceal
3 himself or avoid service. Plaintiff offers no argument on appeal to undermine the
4 district court’s findings, and thus we accept them as true. See Seipert, 2003-NMCA-
5 119, ¶ 26 (“An unchallenged finding of the trial court is binding on appeal.”). The
6 delay in this case is longer than any delay previous New Mexico opinions have
7 examined and found to be acceptable. See Martinez, 2003-NMCA-023, ¶¶ 2, 28-30
8 (concluding that an eight-month delay that was justified demonstrated reasonable
9 diligence); Romero, 2001-NMCA-048, ¶¶ 24-25 (holding that the plaintiff failed to
10 serve the defendant an amended complaint with due diligence where the plaintiff
11 could not justify a thirteen-month delay). Although Plaintiff asserts that he had an
12 agreement with Dr. Lash’s attorney to accept service, and that Dr. Lash later refused
13 to authorize his attorney to accept service, the district court found that those
14 assertions were unsupported by the evidence. Plaintiff has merely reiterated those
15 assertions on appeal without offering any evidence to either support them or
16 undermine the district court’s finding. Furthermore, Plaintiff fails to cite to any
17 authority or evidence in the record in support of his argument that Dr. Lash was not
18 prejudiced by the delay because “no discovery ha[d] taken place” before Dr. Lash
19 was served. See Chan v. Montoya, 2011-NMCA-072, ¶ 9, 150 N.M. 44, 256 P.3d
20 987 (“It is not our practice to rely on assertions of counsel unaccompanied by support
16
1 in the record. The mere assertions and arguments of counsel are not evidence.”
2 (internal quotation marks and citation omitted)); Farmers, Inc. v. Dal Mach. &
3 Fabricating, Inc., 1990-NMSC-100, ¶ 8, 111 N.M. 6, 800 P.2d 1063 (“The
4 presumption upon review favors the correctness of the [district] court’s actions.
5 Appellant must affirmatively demonstrate its assertion of error.”). Given the
6 foregoing, we cannot say that the district court exceeded the bounds of reason by
7 concluding that Plaintiff’s actions to effectuate service was not objectively
8 reasonable, and by dismissing his claims against Dr. Lash.
9 CONCLUSION
10 {20} Because Dr. Anoushfar did not present evidence concerning the day-to-day
11 interactions between ASHD and AGH to demonstrate that AGH is a governmental
12 entity, we reverse the district court’s grant of summary judgment dismissing
13 Plaintiff’s claims as untimely under the TCA and remand to the district court for
14 further proceedings consistent with this opinion. We affirm the district court’s
15 dismissal of Plaintiff’s claims against Dr. Lash.
16 {21} IT IS SO ORDERED.
17 ____________________________________
18 SHAMMARA H. HENDERSON, Judge
17
1 WE CONCUR:
2 ___________________________
3 MEGAN P. DUFFY, Judge
4 ___________________________
5 ZACHARY A. IVES, Judge
18