Stone v. Purifoy

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This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 LEE STONE, 3 Plaintiff-Appellant, 4 v. No. 32,813 5 FAIRY PURIFOY and JOHN HAKANSON, 6 Defendants, 7 and 8 ROBIN H. SMITH and ALETA SMITH, 9 Defendants-Appellees. 10 APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY 11 Albert J. Mitchell, Jr., District Judge 12 Lee Stone 13 San Jon, NM 14 Pro se Appellant 15 Tim J. O Quinn, P.C. 16 Tim J. O Quinn 17 Tucumcari, NM 18 for Appellees 1 MEMORANDUM OPINION 2 BUSTAMANTE, Judge. 3 {1} Appellant Lee Stone (Plaintiff) appeals pro se from the district court s 4 judgment against him in the amount of $5,320.05 in favor of Appellees-Defendants 5 Robin Smith and Aleta Smith (the Smiths). Our notice proposed to affirm. The 6 Smiths filed a memorandum in support. Plaintiff filed a memorandum in opposition 7 and motion to amend the docketing statement, as well as an objection to the Smiths 8 memorandum in support. We deny Plaintiff s motion to amend his docketing 9 statement and remain unpersuaded by Plaintiff s arguments. We therefore affirm. 10 {2} As an initial matter, we address Plaintiff s motion to amend the docketing 11 statement. [MIO 2] In conjunction with his motion to amend, Plaintiff emphasizes 12 additional facts he believes this Court may have overlooked at the time we issued our 13 notice [MIO 2-3] and argues that there are no facts to support our proposed 14 affirmance. [MIO 5] We reiterate the commonplace that the district court resolves 15 conflicts in the evidence, and that we do not re-weigh the evidence on appeal. [RP 16 Vol.1/155-56] See generally Weidler v. Big J Enters., 1998-NMCA-021, ¶ 30, 124 17 N.M. 591, 953 P.2d 1089 (in reviewing a sufficiency of the evidence claim, the 18 reviewing court views the evidence in the light most favorable to the prevailing party 2 1 and disregards evidence and inferences to the contrary). Plaintiff s motion to amend 2 the docketing statement is denied. See State v. Sommer, 1994-NMCA-070, ¶ 11, 118 3 N.M. 58, 878 P.2d 1007 (denying a motion to amend the docketing statement based 4 upon a determination that the argument sought to be raised was not viable). 5 {3} In issue (1), Plaintiff continues to argue that the district court erred by not 6 granting a hearing on Plaintiff s March 13, 2013, affidavit, objection to order and 7 motion for relief from judgment and order under NMRA Rule 1-060(B)(2), (3), (4) 8 (the motion). [DS 6-8, 10; MIO 2-5] As fully explained in our notice, because 9 Plaintiff s motion is a Rule 1-060 NMRA motion premised on newly discovered 10 evidence [RP Vol.II/267-70], the filing of the notice of appeal precluded the district 11 court from considering its merits while Plaintiff s case is pending on appeal. See 12 generally State ex rel. Bell v. Hansen Lumber Co., 1974-NMSC-051, ¶ 6, 86 N.M. 13 312, 523 P.2d 810 (holding that a district court has no jurisdiction to entertain a Rule 14 1-060(B) motion during the pendency of an appeal). We accordingly hold that the 15 district court properly did not hold a hearing to address Plaintiff s allegations of newly 16 discovered evidence. And to the extent Plaintiff in his MIO argues that a new hearing 17 is merited because of improper service of the February 12, 2013, order [MIO 2-3], we 18 note that a violation of Rule 1-058 NMRA (preparation and entry of orders and 19 judgment) does not make the order void. See generally De Lao v. Garcia, 1981- 3 1 NMCA-091, ¶ 6, 96 N.M. 639, 633 P.2d 1237 ( The entry of judgment is a ministerial 2 act, and the validity of the judgment is not affected by delay or omission in entering 3 judgment. ). 4 {4} In issue (2), Plaintiff continues to argue that the district court erred by not 5 entering its findings of fact[] and conclusions of law as promised. [DS 9; MIO 6] 6 For the reasons detailed in our notice, the district court s February 12, 2013, order 7 makes adequate findings, including findings that Plaintiff slandered the Smiths title 8 [RP Vol.II/256] and caused damages to the Smiths in the specific amounts requested 9 by the Smiths in their requested findings and conclusions. [RP Vol.I/155-56, 256-57] 10 Although the district court did not include labeled conclusions in its order, the 11 court s findings that dismiss Plaintiff s complaint against the Smiths and award 12 judgment in favor of the Smiths suffice. See Gough v. Famariss Oil & Ref. Co., 13 1972-NMCA-045, ¶ 10, 83 N.M. 710, 496 P.2d 1106 (recognizing that the occasional 14 intermixture of matters of fact and conclusions of law do not constitute error where 15 the reviewing court can see enough, upon a fair construction, to justify the judgment 16 of the court), modified on other grounds by Delgado v. Phelps Dodge Chino, Inc., 17 2001-NMSC-034, ¶¶ 24-26, 131 N.M. 272, 34 P.3d 1148; see also McCleskey v. N.C. 18 Ribble Co., 1969-NMCA-042, ¶ 4, 80 N.M. 345, 455 P.2d 849 (providing that 19 findings of fact are not required to cover every material fact, only the ultimate facts). 4 1 {5} Lastly, because we conclude that the district court s findings are adequate, we 2 decline Plaintiff s continued request in issue (3) to remand for the district court to 3 enter more extensive findings and conclusions. [MIO 8] While Plaintiff would like for 4 us to remand to consider the effect of the alleged newly discovered evidence 5 referenced in Plaintiff s March 13, 2013, motion [RP Vol.II/263], we decline to do so 6 because there is no indication that the district court would be inclined to grant Plaintiff 7 relief based on the alleged newly discovered evidence. See Hansen Lumber, 19748 NMSC-051, ¶ 7 (stating that a party shall request such leave and that [a] case will be 9 remanded only where the showing reasonably indicates that, if leave is given, the trial 10 court might properly grant the Rule 60(B) motion. ). As we noted in our notice, after 11 this appeal is resolved, the district court will have the authority to consider the merits 12 of Plaintiff s argument that he is entitled to relief pursuant to the Rule 1-060(B) 13 motion. 14 {6} To conclude, for the reasons set forth herein and in our notice, we affirm. 15 {7} IT IS SO ORDERED. 16 17 MICHAEL D. BUSTAMANTE, Judge 5 1 WE CONCUR: 2 3 CYNTHIA A. FRY, Judge 4 5 J. MILES HANISEE, Judge 6

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