Castillo v. Houvener
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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 TED R. CASTILLO, 3 Plaintiff-Appellant, 4 v. NO. 33,153 5 RONALD HOUVENER, BILLIE JO, 6 HOUVENER, and LESLIE HOUVENER, 7 Defendants-Appellees. 8 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 9 Nan G. Nash, District Judge 10 Ted R. Castillo 11 Albuquerque, NM 12 Pro Se 13 The Turner Law Firm, LLC 14 Scott E. Turner 15 Albuquerque, NM 16 The Garrison Law Firm, LLC 17 Jacob A. Garrison 18 Albuquerque, NM 19 for Appellees 20 MEMORANDUM OPINION 1 ZAMORA, Judge. 2 {1} This appeal initially involved a dispute between neighbors regarding an 3 easement. [DS 1] Prior to briefing, however, the parties participated in voluntary 4 mediation and executed a memorandum of understanding laying out a settlement to 5 their dispute. [DS 8-9] More specifically, that memorandum established a method by 6 which the parties were to determine the boundaries of the easement and various 7 actions that the parties would take to resolve their dispute regarding that easement. 8 [RP 228-29] That memorandum also recited that “[t]he terms of this memorandum 9 agreement shall be memorialized in a settlement agreement and release, and 10 incorporated into [a contemplated] amended judgment.” [Id.] During the process of 11 negotiating the language of that settlement agreement, a dispute arose between the 12 parties regarding the meaning and enforceability of the memorandum of 13 understanding. [DS 9] Eventually, this Court remanded the case back to the district 14 court so that the parties could get a ruling on whether or not the memorandum was 15 an enforceable contract. [DS 10] The district court answered that question in the 16 affirmative, and Plaintiff brought this second appeal from that court. [Id.] 17 {2} In this second appeal, Plaintiff’s supplemental docketing statement asserted 18 issues related both to the memorandum of understanding and issues arising out of the 19 earlier trial that was the subject of that memorandum. [SDS 10-28] Our most recent 2 1 calendar notice proposed to affirm the district court’s ruling regarding the 2 memorandum and also proposed that issues related to the prior trial were rendered 3 moot by the parties’ settlement of their underlying dispute. [3CN 2] Plaintiff has since 4 filed a memorandum in opposition to summary disposition and a letter to the Court, 5 both of which assert Plaintiff’s disagreement with this Court’s proposed disposition 6 as well as various issues arising over the entire course of this litigation. Having 7 considered Plaintiff’s filings in this Court, we are unpersuaded and now affirm. 8 {3} With regard to Plaintiff’s argument that the memorandum was not a contract, 9 Plaintiff argues that he did not intend for it to be an agreement, that it does not 10 “indicate that it is an agreement nor that it is binding,” that it was not supported by 11 an offer, an acceptance, mutual agreement, and consideration [MIO ¶ 2], and that 12 “[a]n agreement has never been reached” [LTR ¶ 7]. Plaintiffs argument on this point, 13 however, consists entirely of the undeveloped assertions just quoted. Apart from 14 simply reasserting his opinion that the memorandum of understanding is not an 15 enforceable contract, Plaintiff does not explain how the facts of this case or the 16 applicable law can lead to the conclusion he would like from this Court. See State v. 17 Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d 1003 (stating that “[a] 18 party responding to a summary calendar notice must come forward and specifically 19 point out errors of law and fact,” and the repetition of earlier arguments does not 3 1 fulfill this requirement), superseded by statute on other grounds as stated in State v. 2 Harris, 2013-NMCA-031, ¶ 3, 297 P.3d 374. We, therefore, hold that the 3 memorandum of understanding consists of an accepted offer to settle the parties’ 4 disputes. The document, itself, which is signed by the parties, consists of validly 5 exchanged promises by the parties to perform specific actions in consideration of one 6 another’s performance of their mutually assumed obligations. As such, the 7 memorandum is an enforceable contract. See Strausberg v. Laurel Healthcare 8 Providers, LLC, 2013-NMSC-032, ¶ 42, 304 P.3d 409 (noting that proof of a contract 9 is accomplished by a showing that “the contract is factually supported by an offer, an 10 acceptance, consideration, and mutual assent” (internal quotation marks and citation 11 omitted)). 12 {4} Plaintiff also asserts that “Defendant’s assertion before the district court that 13 . . . Plaintiff breached the terms of the [memorandum of understanding] by failing to 14 obtain the survey is fraudulent.” [MIO ¶ 3] Although it appears from the record that 15 Defendants may have presented evidence that Plaintiff did not obtain a survey [RP 16 223, 237, 244-48], and our calendar notice made reference to Defendants’ assertions 17 in that regard [3CN 4-5], the question of whether Plaintiff did so or not is not 18 ultimately relevant to the question at hand, which is solely whether the memorandum 19 is an enforceable contract. 4 1 {5} The remainder of the issues asserted by Plaintiff in his memorandum and letter 2 involve matters not asserted in his docketing statement. We construe Plaintiff’s 3 assertion of these issues as a motion to amend his docketing statement to raise 4 additional isses. In order to show good cause for our allowance of an amendment to 5 a docketing statement, an appellant must establish: (1) that the motion is timely, (2) 6 that the new issues to be raised were either (a) properly preserved below or (b) 7 allowed to be raised for the first time on appeal, and (3) that the issues raised are 8 viable. State v. Moore, 1989-NMCA-073, ¶ 42, 109 N.M. 119, 782 P.2d 91, overruled 9 on other grounds by State v. Salgado, 1991-NMCA-044, ¶ 2, 112 N.M. 537, 817 P.2d 10 730. 11 {6} The issues that Plaintiff seeks to raise in this appeal, however, are not viable. 12 Many of those issues involve or are based upon facts and assertions that do not appear 13 anywhere in the record of this case. [See MIO ¶¶ 4, 8, 9, 10, 11, 12, 16; LTR ¶ 2] 14 Plaintiff does not suggest that these issues were put before the district court, and, in 15 any event, it is well-established that “[m]atters outside the record present no issue for 16 review.” State v. Reynolds, 1990-NMCA-122, ¶ 16, 111 N.M. 263, 804 P.2d 1082. 17 Many other issues that Plaintiff seeks to raise involve his prior trial in the district 18 court. [See MIO ¶¶ 5, 6, 7, 13, 14, 17] Because we are affirming the district court’s 19 ruling that the memorandum of understanding constitutes a valid and enforceable 5 1 settlement of the claims raised in that trial, however, any issues arising from that trial 2 are rendered moot by the memorandum, itself. [3CN 2] And, finally, Plaintiff’s 3 remaining issues are completely undeveloped arguments consisting entirely of bare 4 assertions that the memorandum “is being used . . . to outsmart and swindle the 5 Plaintiff,” and that the State “has an obligation to protect its citizens from fraudulent 6 use of the courts.” [MIO 1, 15] It is not the proper role of this Court to engage in 7 speculation and surmise to construct an appellate argument for a party. See Headley 8 v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 9 (declining to review undeveloped arguments). 10 {7} As the new issues asserted by Plaintiff are not viable, we deny Plaintiff’s 11 motion to amend his docketing statement and affirm the order of the district court 12 holding that the memorandum of understanding is valid and enforceable. 13 {8} IT IS SO ORDERED. 14 15 M. MONICA ZAMORA, Judge 16 WE CONCUR: 17 18 JAMES J. WECHSLER, Judge 6 1 2 STEPHEN G. FRENCH, Judge 7
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