Sanchez v. Torres
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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 ELISA SANCHEZ, 3 Plaintiff-Appellant, 4 v. No. 35,300 5 NICHOLAS TORRES and 6 YOUNG AMERICA INSURANCE COMPANY 7 Defendants-Appellees. 8 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 9 Denise Barela Shepherd, District Judge 10 Chavez Law Offices 11 Gene N. Chavez 12 Albuquerque, NM 13 for Appellant 14 O’Brien & Padilla PC 15 Richard M. Padilla 16 Albuquerque, NM 17 for Appellees 18 19 VIGIL, Chief Judge. MEMORANDUM OPINION 1 {1} Plaintiff appeals from the district court’s order of dismissal with prejudice, and 2 the district court’s subsequent denial of her motion to reconsider. This Court issued 3 a calendar notice proposing to summarily dismiss Plaintiff’s appeal on the basis of 4 mootness, and in the alternative, we proposed summary affirmance. Plaintiff filed a 5 memorandum in opposition to this Court’s notice of proposed disposition, which we 6 have duly considered. Unpersuaded, we dismiss. 7 {2} Plaintiff raises a single issue on appeal, essentially contending that the district 8 court erred in entering an order of dismissal with prejudice instead of entering 9 judgment against Defendant Nicholas Torres (Torres) following his acceptance of 10 Plaintiff’s offer of settlement, made pursuant to Rule 1-068 NMRA. [DS 3-5; MIO 1] 11 {3} In our calendar notice, we expressed our view that, in light of the fact that 12 Defendant Torres tendered the agreed-upon settlement of $14,500.17 to Plaintiff prior 13 to the entry of judgment, the issue on appeal appeared to be based solely upon the 14 form of judgment entered by the district court. [CN 2] That is, Plaintiff contends that 15 the district court should have entered judgment against Torres, instead of entering a 16 dismissal with prejudice. [CN 2; MIO 1] However, because it did not appear that the 17 order of dismissal had any effect on the amount of money Plaintiff received in 18 settlement of this case, we suggested that we failed to see how Plaintiff was aggrieved 19 by the form of judgment. Therefore, we suggested that this appeal is moot, as it 1 appears that Plaintiff can obtain no actual relief on appeal. [CN 2] See Gunaji v. 2 Macias, 2001-NMSC-028, ¶ 9, 130 N.M. 734, 31 P.3d 1008 (stating that an appeal is 3 moot when no actual controversy exists and an appellate ruling will not grant any 4 relief); see also State v. Ordunez, 2012-NMSC-024, ¶ 22, 283 P.3d 282 (“It is not 5 within the province of an appellate court to decide abstract, hypothetical or moot 6 questions in cases wherein no actual relief can be afforded.” (alteration, internal 7 quotation marks, and citation omitted)). 8 {4} In her memorandum in opposition, Plaintiff contends that her appeal is not moot 9 because the form of judgment is “crucial” to her claim against Defendant Young 10 America Insurance Company for unfair practices, pursuant to Hovet v. Allstate 11 Insurance Co., 2004-NMSC-010, 135 N.M. 397, 89 P.3d 69. [MIO 1] We are not 12 convinced, however, that the form of judgment has bearing on Plaintiff’s Hovet claim 13 such that she is aggrieved in this case by the district court’s decision to enter a 14 dismissal with prejudice instead of entering judgment against Torres. 15 {5} In Hovet, our Supreme Court stated that “[t]hose electing to settle their claims 16 without a judicial determination of liability waive any claims under the Insurance 17 Code for unfair settlement practices.” Hovet, 2004-NMSC-010, ¶ 26. In King v. 18 Allstate Ins. Co., 2007-NMCA-044, ¶ 17, 141 N.M. 612, 159 P.3d 261, this Court 2 1 recognized “there is a big difference between a compromised settlement and a judicial 2 determination of liability” and that “[s]ettling a case does not necessarily involve 3 establishment of liability that carries the weight of a judicial determination.” 4 {6} Aside from the citation to Hovet and her bare contention that an entry of 5 judgment “is an admission of liability” [MIO 1, 3], Plaintiff’s memorandum in 6 opposition provides us with no authority to support her position that a judgment 7 entered against a party pursuant to a Rule 1-068 offer of settlement is—without 8 more—akin to a judicial determination of liability or otherwise satisfies the 9 requirements for a Hovet claim. Where a party cites no authority to support an 10 argument, we may assume no such authority exists. In re Adoption of Doe, 198411 NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329. Thus, we remain unconvinced that 12 Plaintiff is aggrieved by the form of judgment entered in this case. See Hennessy v. 13 Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have 14 repeatedly held that, in summary calendar cases, the burden is on the party opposing 15 the proposed disposition to clearly point out errors in fact or law.”). 16 {7} Therefore, for the reasons stated in this Opinion, as well as those provided in 17 our calendar notice, we dismiss. 18 {8} IT IS SO ORDERED. 3 1 2 ______________________________ MICHAEL E. VIGIL, Chief Judge 3 WE CONCUR: 4 ___________________________________ 5 JAMES J. WECHSLER, Judge 6 ___________________________________ 7 STEPHEN G. FRENCH, Judge 4
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