Berman v. Orduno
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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 DIANE BERMAN, 3 Plaintiff-Appellee, 4 v. NO. 34,799 5 ROBERT ORDUNO, 6 Defendant-Appellant, 7 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 8 David K. Thomson, District Judge 9 Diane Berman 10 Santa Fe, NM 11 Pro Se Appellee 12 Robert Orduno 13 Santa Fe, NM 14 Pro Se Appellant 15 MEMORANDUM OPINION 16 ZAMORA, Judge. 17 {1} Defendant has appealed from a final order. We previously issued a notice of 18 proposed summary disposition in which we proposed to reverse and remand for 19 further proceedings. Defendant has filed a memorandum in support and Plaintiff has 1 filed a memorandum in opposition. After due consideration, we adhere to our initial 2 assessment. 3 {2} Because we previously set forth the pertinent background information and 4 applicable principles of law in the notice of proposed summary disposition, we will 5 avoid undue reiteration here. Instead, we will focus on the content of the responsive 6 memoranda. 7 {3} Defendant continues to take issue with the jurisdiction of the district court over 8 the subject matter and his person. [Defendant’s MIS 1-3] The argument(s) are 9 incomprehensible. As previously stated, we perceive no principled basis for the 10 jurisdictional challenge. 11 {4} However, the absence of notice remains a critical concern. Although we 12 understand Plaintiff to suggest that Defendant received notice of the trial setting, 13 [Plaintiff’s MIO 1] the document sent by the district court did not indicate that the 14 matter had been set for trial. [RP 188] And although Plaintiff appears to have sent a 15 copy of a draft pretrial order to Defendant via certified mail, [Plaintiff’s MIO Exhibit 16 1A-C] this document was neither signed by the judge nor filed. As such, it cannot be 17 regarded as official notice of a firm trial setting. Absent such notice, we remain of the 18 opinion that the judgment must be set aside. 2 1 {5} Accordingly, for the foregoing reasons, as well as the reasons set forth in the 2 notice of proposed summary disposition, we reverse and remand for further 3 proceedings. 4 {6} IT IS SO ORDERED. 5 6 M. MONICA ZAMORA, Judge 7 WE CONCUR: 8 9 JAMES J. WECHSLER, Judge 10 11 TIMOTHY L. GARCIA, Judge 3
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