Smith v. Moore

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 DEBRA SMITH,
3 Plaintiff-Appellant,
4 v. NO. A-1-CA-36952
5 MARK W. MOORE and
6 SUSAN M. MOORE,
7 Defendants-Appellees.
8 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
9 Mark T. Sanchez, District Judge
10 Eric D. Dixon, Attorney & Counselor at Law, P.A.
11 Eric D. Dixon
12 Portales, NM
13 for Appellant
14 Jay Lynn Francis
15 Carlsbad, NM
16 for Appellees
17 MEMORANDUM OPINION
18 VIGIL, Judge.
1 {1} Following a trial on the merits, Plaintiff Debra Smith appeals from the district
2 court’s findings of fact, conclusions of law, and final order. [2 RP 279-90, 297-98,
3 359-75; see also DS 2-3] We issued a notice of proposed summary disposition in
4 which we proposed to affirm. Plaintiff filed a timely memorandum in opposition to
5 our notice of proposed disposition, which we have duly considered. We remain
6 unpersuaded and affirm.
7 {2} In her docketing statement, Plaintiff raised three issues: (1) whether the district
8 court erred, as a matter of law, when it denied Plaintiff’s claim for constructive fraud;
9 (2) whether the district court erred, as a matter of law, when it concluded that New
10 Mexico does not recognize an action for breach of an implied covenant of habitability
11 of residential real property obtained by purchase; and (3) whether the district court
12 erred, as a matter of law, when it denied Plaintiff’s claim for breach of fiduciary duty.
13 [DS 6-7] In our notice of proposed disposition, we set forth the relevant background
14 information and principles of law and stated our reasons for proposing to affirm.
15 {3} With respect to the constructive fraud issue, we observed that Plaintiff did not
16 challenge the findings of fact, and given the unchallenged findings of fact, we were
17 not convinced that Defendants had a duty to disclose any of the conditions raised by
18 Plaintiff. [CN 4] We further stated that, even if Defendants had some duty, we were
19 not persuaded that Defendants breached any legal or equitable duty in this case. [CN
2
1 4] Because we were not convinced that Plaintiff had demonstrated that the district
2 court erred in concluding that Plaintiff failed to carry her burden of proof by proving
3 constructive fraud with “credible, competent, clear, and convincing evidence,” we
4 proposed to affirm. [CN 4-5 (quoting 2 RP 289)] See Farmers, Inc. v. Dal Mach. &
5 Fabricating, Inc., 1990-NMSC-100, ¶ 8, 111 N.M. 6, 800 P.2d 1063 (stating that
6 appellate courts employ a presumption of correctness in the rulings of the district
7 court and the burden is on the appellant to clearly demonstrate error).
8 {4} With respect to Plaintiff’s claim of breach of an implied covenant of habitability
9 of residential real property obtained by purchase, we discussed Newcum v. Lawson,
10 1984-NMCA-057, 101 N.M. 448, 684 P.2d 534. [CN 5-6] In Newcum, we noted that
11 “New Mexico has rejected this implied warranty in landlord-tenant situations, but has
12 not decided whether the implied warranty exists in connection with the sale of a new
13 house.” Id. ¶ 31 (citation omitted). In that case, we declined to decide whether New
14 Mexico recognizes the existence of an implied warranty of fitness for habitability
15 arising from the sale of a new residence because “under the express terms of the
16 written construction contract between the parties, there could be no implied warranty
17 of habitability.” Id. In light of the foregoing, we suggested that Plaintiff had failed to
18 explain why she is entitled to a greater right than that currently recognized in New
19 Mexico. [CN 6] See Elane Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309
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1 P.3d 53 (“We will not review unclear arguments, or guess at what a party’s arguments
2 might be.” (alteration, internal quotation marks, and citation omitted)).
3 {5} With respect to the breach of fiduciary duty claim, we noted that the district
4 court found that Mrs. Moore was not representing Plaintiff as an attorney in this case,
5 and “the parties dealt mainly through realtors and escrow agents,” [CN 6-7 (quoting
6 2 RP 282)] and Plaintiff did not challenge this finding on appeal. [CN 7] Additionally,
7 we explained that, besides Plaintiff’s mention that Mrs. Moore is an attorney, it was
8 unclear why Plaintiff believed that Defendants owed her a fiduciary duty. [CN 7] See
9 Elane Photography, LLC, 2013-NMSC-040, ¶ 70; Curry v. Great Nw. Ins. Co.,
10 2014-NMCA-031, ¶ 28, 320 P.3d 482 (“Where a party cites no authority to support
11 an argument, we may assume no such authority exists.”).
12 {6} In her memorandum in opposition, Plaintiff asserts no facts, law, or arguments
13 that are not otherwise addressed by this Court’s notice of proposed disposition. [See
14 generally MIO] See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955
15 P.2d 683 (“Our courts have repeatedly held that, in summary calendar cases, the
16 burden is on the party opposing the proposed disposition to clearly point out errors in
17 fact or law.”); State v. Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d
18 1003 (stating that a party responding to a summary calendar notice must come forward
19 and specifically point out errors of law and fact, and the repetition of earlier arguments
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1 does not fulfill this requirement), superseded by statute on other grounds as stated in
2 State v. Harris, 2013-NMCA-031, ¶ 3, 297 P.3d 374. We therefore refer Plaintiff to
3 our analysis therein.
4 {7} For the reasons stated in our notice of proposed disposition and herein, we
5 affirm the district court’s orders.
6 {8} IT IS SO ORDERED.
7 ____________________________________
8 MICHAEL E. VIGIL, Judge
9 WE CONCUR:
10 _______________________________
11 LINDA M. VANZI, Chief Judge
12 _______________________________
13 JULIE J. VARGAS, Judge
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