Kupcak v. Mosaic Potash Carlsbad

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
4 errors or other deviations from the official paper version filed by the Court of Appeals and does
5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 JACOB F. KUPCAK III and
8 DEBRA S. KUPCAK,
9 Petitioners-Appellants,
10 vs. No. 31,103
11 MOSAIC POTASH CARLSBAD, INC.,
12 a New Mexico mining operation;
13 MARSCHALL I. SMITH, individually,
14 president, Mosaic Potash Carlsbad, Inc.;
15 JIM PROKOPANKO, individually, CEO,
16 Mosaic Potash Carlsbad, Inc.; WILLIAM
17 BOYER, individually, general manager,
18 Mosaic Potash Carlsbad Inc.; JOHN DOE/
19 JANE DOE, individually, company attorney;
20 CARGILL PAYROLL DEPARTMENT;
21 YVONNE NILSSON, individually, supervisor,
22 Cargill Payroll Department;
23 Respondents-Appellees.
24 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
25 Richard J. Brown, District Judge
26 Jacob F. Kupcak, III
27 Debra S. Kupcak
28 Carlsbad, NM
29 Pro Se Appellants
1 Jose A. Howard-Gonzales
2 El Paso, TX
3 for Appellees
4 MEMORANDUM OPINION
5 VANZI, Judge.
6 Petitioners appeal an order dismissing their complaint. In this Court’s notice
7 of proposed summary disposition, we proposed to affirm. Petitioners have filed a
8 memorandum in opposition, which we have duly considered. As we are not persuaded
9 by Petitioners’ arguments, we affirm.
10 In this Court’s notice of proposed summary disposition, we proposed to hold
11 that the district court did not err in dismissing the case based on the defense to liability
12 provided by 26 U.S.C. § 6332(e) (1990). In their memorandum in opposition,
13 Petitioners continue to put forth various constitutional and statutory arguments on the
14 merits of whether the levy in this case was proper and whether it violated their rights.
15 However, even if Petitioners are correct on the merits, they have not explained why
16 dismissal of this suit against Respondents was not appropriate pursuant to 26 U.S.C.
17 § 6332(e).
18 Because Petitioners have failed to respond to the portion of our proposed
19 analysis regarding § 6332(e), they are unable to persuade us that our proposal is in
2
1 error. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 6832 (“Our courts have repeatedly held that, in summary calendar cases, the burden is on
3 the party opposing the proposed disposition to clearly point out errors in fact or
4 law.”); State v. Johnson, 107 N.M. 356, 358, 758 P.2d 306, 308 (Ct. App. 1988)
5 (stating that an issue is deemed abandoned when a party fails to respond to this
6 Court’s notice of proposed summary disposition of that issue).
7 Therefore, for the reasons stated in this opinion and in our notice of proposed
8 summary disposition, we affirm.
9 IT IS SO ORDERED.
10 __________________________________
11 LINDA M. VANZI, Judge
12 WE CONCUR:
13 _________________________________
14 JAMES J. WECHSLER, Judge
15 _________________________________
16 CYNTHIA A. FRY, Judge
3