Romero v. Hone

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 MICHAEL P. ROMERO, d/b/a
3 SANGRE DE CRISTO MTN:
4 STONE & EXCAVATION,
5 Plaintiff-Appellee,
6 v. NO. 34,217
7 LINDA HONE, CHACHALACA, LLC,
8 and LOST DOG, LLC,
9 Defendants-Appellants.
10 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
11 Jeff McElroy, District Judge
12 New Mexico Legal Center PC
13 Lee Boothby
14 Taos, NM
15 for Appellee
16 Richard S. Mackenzie
17 Santa Fe, NM
18 for Appellants
19 MEMORANDUM OPINION
1 WECHSLER, Judge.
2 {1} Appellants Linda Hone, Chachalaca, LLC, and Lost Dog, LLC (Defendants)
3 appeal from the district court’s order denying Defendants’ motion to declare void the
4 order granting summary judgment in favor of Appellee Michael Romero, d/b/a/
5 Sangre de Christo Mtn: Stone & Excavation (Plaintiff). This Court issued a notice
6 proposing to affirm. Defendants have filed a memorandum in opposition, which we
7 duly considered. Unpersuaded, we affirm.
8 {2} In this Court’s notice of proposed disposition we noted that, in addressing
9 motions to dismiss for a void judgment pursuant to Rule 1-060(B) NMRA, our case
10 law does not appear to apply the due process considerations of Rule 1-004 NMRA
11 (service of process) to Rule 1-005 (service of pleadings). [CN 3-4] Additionally, we
12 proposed to hold that any insufficiency in the notice of hearing on the motion for
13 summary judgment did not violate Defendants’ due process rights because, “[i]n
14 considering a motion for summary judgment, the court may, but is not required to,
15 hold an oral hearing.” National Excess Ins. Co. v. Bingham, 1987-NMCA-109, ¶ 9,
16 106 N.M. 325, 742 P.2d 537. [CN 6] Defendants respond in their memorandum in
17 opposition by continuing to argue that summary judgment was not proper, because
18 Defendants were not properly served with the notice of hearing and that Defendants’
19 due process rights were violated, resulting in a void judgment. [MIO 2-5] In support
2
1 of this contention, Defendants cite Barnett v. Cal M, Inc. 1968-NMSC-159, ¶ 4, 79
2 N.M. 553, 445 P.2d 974, in which the New Mexico Supreme Court held that a
3 summary judgment required reversal when it was granted before the time had expired
4 for the opposing party to respond. Defendants fails to point out, however, that the
5 Court found without merit the plaintiff’s argument that he was prejudiced by lack of
6 sufficient notice of the hearing at which the motions for summary judgment were
7 heard. Id. ¶ 5. Morever, Defendants again fail to cite any New Mexico cases that apply
8 due process requirements of Rule 1-004 to service of subsequent pleadings under Rule
9 1-005. This Court will not consider propositions that are unsupported by citation to
10 authority. ITT Educ. Servs., Inc. v. Taxation & Revenue Dep’t, 1998-NMCA-078,
11 ¶ 10, 125 N.M. 244, 959 P.2d 969.
12 {3} We further noted in our notice of proposed disposition that, even if the Rule 1-
13 004 due process considerations applied to service of pleadings, Defendants
14 nonetheless did not show how notice of the summary judgment hearing was improper
15 under Rule 1-005, because the notice was served on Defendant Hone’s last known
16 address provided to the district court [RP Vol.4/927, Vol.1/262, Vol.5/1288], and she
17 failed to appropriately notify the district court of her change of address in compliance
18 with Local Rule LR8-301 NMRA. Defendants respond by contending Defendant
19 Hone, as a self-represented litigant during portions of these proceedings, should be
3
1 afforded special attention and consideration. [MIO 3-4, 8-9] We have previously held
2 that “[a]lthough pro se pleadings are viewed with tolerance, a pro se litigant is held
3 to the same standard of conduct and compliance with court rules, procedures, and
4 orders as are members of the bar.” In re Camino Real Envtl. Ctr., Inc., 2010-NMCA-
5 057, ¶ 21, 148 N.M. 776, 242 P.3d 343 (alteration, internal quotation marks, and
6 citation omitted). To the extent Defendants refer to notice to parties who are not part
7 of this appeal [MIO 6], we decline to address those issues. See In re Mokiligon, 2005-
8 NMCA-021, ¶ 7, 137 N.M. 22, 106 P.3d 584 (“[T]his Court will not consider and
9 counsel should not refer to matters not of record[.]” (internal quotation marks and
10 citation omitted)). We therefore conclude that Defendants have failed to point out any
11 actual errors in fact or in law with this Court’s notice. See Hennessy v. Duryea,
12 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly
13 held that, in summary calendar cases, the burden is on the party opposing the proposed
14 disposition to clearly point out errors in fact or law.”).
15 {4} For the reasons stated above and in this Court’s notice of proposed disposition,
16 we affirm.
17 {5} IT IS SO ORDERED.
18 ________________________________
19 JAMES J. WECHSLER, Judge
4
1 WE CONCUR:
2 ________________________________
3 CYNTHIA A. FRY, Judge
4 ________________________________
5 RODERICK T. KENNEDY, Judge
5