MARY V. MARTINEZ, Plaintiff-Appellant, v. SOMBRA DEL OSO APARTMENTS, LLC, Defendant-Appellee.
No. A-1-CA-42238
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
November 20, 2024
WRAY, Judge.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY, Elaine P. Lujan, District Court Judge
Mary V. Martinez
Albuquerque, NM
Pro Se Appellant
Allen, Shepherd & Lewis, P.A.
Brant L. Lillywhite
Albuquerque, NM
for Appellee
MEMORANDUM OPINION
WRAY, Judge.
{1} Plaintiff Mary V. Martinez appeals from the district court’s order dismissing her lawsuit for lack of prosecution. [RP 123-24] Plaintiff filed a timely motion to reinstate [RP 125-26], which the district court denied [RP 191-92]. This Court issued a notice of proposed disposition proposing to affirm. Plaintiff filed a memorandum in opposition, and Defendant filed a memorandum in support. We have duly considered these, and, unpersuaded by the memorandum in opposition, we affirm.
{3} We review the district court’s determination as to good cause shown for an abuse of discretion. See id. ¶ 9. “Discretion is abused when the court exceeds the bounds of reason, all the circumstances before it being considered.” Id. ¶ 6 (internal quotation marks and citation omitted). The purpose of
{4} Our notice of proposed disposition explicitly noted what further information this Court required to review the district court’s determination for an abuse of discretion and thus we noted that “[t]o reinstate the case, Plaintiff needed to make assertions as to why ‘the delay [in this case] is not wholly without justification.’ (quoting Summit Elec. Supply Co., 2010-NMCA-086, ¶ 7 (internal quotation marks and citation omitted)).” [See CN 5] We also said:
Plaintiff does not explain in the docketing statement (1) why nothing happened in the case after June 21, 2023; (2) what Plaintiff told the district court at the hearing on the motion to reinstate about why it looks like nothing happened in this case after June 21, 2023; or (3) anything the district court may have said or asked at the hearing that would explain why the case was not reinstated. Without this information, we propose to hold that the district court did not exceed the bounds of reason in finding that Plaintiff did not show good cause for reinstatement.
[CN 5]
{5} We have reviewed Plaintiff’s memorandum in opposition to our notice of proposed disposition, and we still cannot conclude that the district court abused its discretion in denying Plaintiff’s motion to reinstate the case. We understand that Plaintiff believed that she was waiting to hear “back from the motions [she] sent to the court,”
{6} However, these assertions about Plaintiff’s failure to receive information from Defendant do not address the information that this Court needs to determine whether the district court erred in failing to reinstate the case. Plaintiff’s memorandum in opposition still does not present this Court with information about the district court ruling that is on appeal now: the district court’s order denying Plaintiff’s motion to reinstate the case. Plaintiff does not present this Court with the arguments that she made at the district court at the hearing on the motion to reinstate about why it looks like nothing happened in this case after June 21, 2023; or provide this Court with information regarding anything the district court may have said or asked at the hearing that would explain why the case was not reinstated. [See CN 5]
{7} Based upon the record proper, it appears that, at least to some extent, Plaintiff was aware of the mailing address issues prior to the district court’s hearing on her motion to reinstate the case. For example, on August 30, 2024, Plaintiff filed a pleading asserting in part that she had not received notice of a prior hearing because the attorney had sent it to an old address. [RP 177] We also note that, to some extent, Plaintiff was able to participate in discovery earlier in the case, and in fact appears to have sat for a deposition conducted by Defendant. [RP 43] But after the hearing on September 30, 2024, the district court decided that Plaintiff had not shown good cause to reinstate the case. [RP 171-73, 191-92] Plaintiff’s explanations to this Court do not establish that the district court abused its discretion by concluding that Plaintiff failed to pursue prosecution of her case pursuant to
{8} In her memorandum in opposition, Plaintiff has not asserted any facts, law, or argument that persuade this Court that our notice of proposed disposition was erroneous. See State v. Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d 1003 (stating that “[a] party responding to a summary calendar notice must come forward and specifically point out errors of law and fact,” and the repetition of earlier arguments does not fulfill this requirement), superseded by statute on other grounds as stated in State v. Harris, 2013-NMCA-031, ¶ 3, 297 P.3d 374; see also Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly held that, in summary calendar cases, the burden is on the party opposing the proposed disposition to clearly point out errors in fact or law.”).
{9} Accordingly, for the reasons stated in our notice of proposed disposition and herein, we affirm the district court.
KATHERINE A. WRAY, Judge
WE CONCUR:
ZACHARY A. IVES, Judge
GERALD E. BACA, Judge