Becerra v. Salazar

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 GABRIEL BECERRA,
3 Plaintiff-Appellant,
4 v. NO. 32, 393
5 MARIO SALAZAR and
6 NARCISO GARCIA, JR.
7 Defendant-Appellant.
8 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
9 Nan G. Nash, District Judge
10 Gabriel Becerra
11 Albuquerque, NM
12 Pro Se Appellant
13 Rodey, Dickason, Sloan, Akin & Robb, P.A.
14 Lisa C. Ortega
15 Seth L. Sparks
16 Albuquerque, NM
17 for Appellee
18 MEMORANDUM OPINION
19 VANZI, Judge.
1 {1} References to the Record Proper [RP] are to the record filed in this Court in
2 Becerra v. Allstate, No. 32,456.
3 {2} Appellant pro se, Gabriel Becerra, appeals the district court’s denial of his
4 motion to amend or supplement the complaint. We issued a notice of proposed
5 summary disposition proposing to dismiss for lack of a final order on January 16,
6 2013. Appellant has responded with a timely memorandum in opposition, which we
7 have duly considered. We remain unpersuaded, and we therefore dismiss this appeal.
8 {3} This Court’s jurisdiction lies from final, appealable orders. See NMSA 1978,
9 § 39-3-2 (1966); Kelly Inn No. 102 v. Kapnison, 113 N.M. 231, 234 n.7, 824 P.2d
10 1033, 1036 n.7 (1992). Whether an order is final, such that appeal is statutorily
11 authorized, is a jurisdictional question that this Court is required to raise on its own
12 motion. See Britt v. Phoenix Indem. Ins. Co., 120 N.M. 813, 815, 907 P.2d 994, 996
13 (1995); Khalsa v. Levinson, 1998-NMCA-110, ¶ 12, 125 N.M. 680, 964 P.2d 844.
14 {4} Appellant seeks to appeal from two orders of the district court. [DS 2] The first
15 order, filed on July 18, 2012, denies Appellant’s motion to amend his complaint to
16 add Narciso Garcia as a defendant to his claims of malicious abuse of process and
17 fraudulent conveyance. [RP 2114] On July 30, 2012, Appellant filed a motion to “alter
18 or amend judgment.” [RP 2152] Although it is titled a motion to alter or amend the
19 judgment, the motion essentially asks the district court to reconsider its July 18 order
20 denying his motion to amend. See Century Bank v. Hymans, 120 N.M. 684, 689, 905
2
1 P.2d 722, 727 (Ct. App. 1995) (stating that the substance of the motion, not its title,
2 controls). On August 10, 2012, the district court filed the second order denying the
3 motion for reconsideration. [RP 2216]
4 {5} In our notice of proposed summary disposition, we proposed to hold that the
5 district court’s order denying Appellant’s motion to amend his complaint and its order
6 denying reconsideration were not final appealable orders. See Clancy v. Gooding, 98
7 N.M. 252, 254, 647 P.2d 885, 887 (Ct. App. 1982) (“Ordinarily, an order denying a
8 motion to amend a complaint is not final for purposes of appeal.”). In Clancy, we held
9 that an order denying a motion to amend a complaint to add an insurance company as
10 a defendant was not a final order where there was no indication that the plaintiff’s
11 cause of action against the insurance company would be effectively lost or irreparably
12 damaged as a result of the court’s denial of her motion to amend. See id. at 254-55,
13 647 P.2d at 887-88. We proposed to hold that Appellant had not made such a showing
14 based on our review of the record and the docketing statement.
15 {6} In his memorandum in opposition, Appellant states that the district court’s
16 denial of his motion to amend the complaint will result in his cause of action being
17 lost or irreparably harmed due to statute of limitations issues and collateral estoppel.
18 [MIO 2] However, Appellant does not elaborate beyond this general assertion. We
19 therefore do not believe that Appellant has demonstrated how his cause of action
20 would be irreparably lost or damaged as a result of the district court’s denial to amend.
3
1 See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our
2 courts have repeatedly held that, in summary calendar cases, the burden is on the party
3 opposing the proposed disposition to clearly point out errors in fact or law.”); see also
4 Muse v. Muse, 2009-NMCA-003, ¶ 72, 145 N.M. 451, 200 P.3d 104 (“We will not
5 search the record for facts, arguments, and rulings in order to support generalized
6 arguments.”).
7 {7} Appellant also argues that the district court’s order denying his motion is too
8 important to be denied review and “too independent of the cause itself to require that
9 appellate consideration be deferred until the whole case is adjudicated.” [MIO 2]
10 Appellant also states that his appeal “is directly related to matters of first impression,
11 clarification, or modification to existing common law or statutes which are in dire
12 need of being addressed by a higher court.” [MIO 2-3] Again, however, Appellant
13 only makes generalized assertions and provides no information or citation to relevant
14 authority to support these claims. See Republican Party of N.M. v. N.M. Taxation &
15 Revenue Dep’t, 2010-NMCA-080, ¶ 38, 148 N.M. 877, 242 P.3d 444 (“[W]e do not
16 review unclear or inadequately developed arguments or arguments for which no
17 authority has been cited.”); see also In re Adoption of Doe, 100 N.M. 764, 765, 676
18 P.2d 1329, 1330 (1984) (stating that where a party cites no authority to support an
19 argument, we may assume no such authority exists). Finally, Appellant asserts,
20 without citation to authority, that an order denying leave to file an amended or
4
1 supplemented complaint is final for purposes of appeal. [MIO 2] This Court will not
2 consider propositions that are unsupported by citation to authority. ITT Educ. Servs.,
3 Inc. v. Taxation & Revenue Dep’t, 1998-NMCA-078, ¶ 10, 125 N.M. 244, 959 P.2d
4 969. We therefore reject this argument.
5 {8} Accordingly, we hold that Appellant has not demonstrated that the district
6 court’s order denying his motion to amend the complaint is a final order which can be
7 appealed at this stage of the proceedings. For these reasons, we dismiss this appeal.
8 We note that, once the district court enters a final order in this case, Appellant is free
9 to appeal in accordance with our rules of procedure.
10 {9} IT IS SO ORDERED.
11 __________________________________
12 LINDA M. VANZI, Judge
13 WE CONCUR:
14 _________________________________
15 JAMES J. WECHSLER, Judge
16 _________________________________
17 JONATHAN B. SUTIN, Judge
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