State of New Mexico Uninsured Employers' Fund v. Gallegos

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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 STATE OF NEW MEXICO UNINSURED 3 EMPLOYERS’ FUND, 4 Petitioner-Appellee, 5 v. 6 7 8 9 10 No. A-1-CA-36705 GREG GALLEGOS, aka GREG McCOOL d/b/a MONSTER CONSTRUCTION & ROOFING, Respondent-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 Alan M. Malott, District Judge 13 New Mexico Uninsured Employers’ Fund 14 Richard P. Bustamante 15 Albuquerque, NM 16 for Appellee 17 Greg Gallegos 18 Albuquerque, NM 19 Pro Se Appellant 20 21 VIGIL, Judge. MEMORANDUM OPINION 1 {1} Respondent Greg Gallegos, a self-represented litigant, appeals from the district 2 court’s order of default judgment to enforce a Workers’ Compensation 3 Administration’s (WCA’s) judgment. We issued a notice of proposed summary 4 disposition in which we proposed to affirm, and we denied Petitioner’s motion to 5 dismiss the appeal. Respondent did not file a timely memorandum in opposition to this 6 Court’s notice of proposed disposition. Accordingly, we issued a memorandum 7 opinion affirming. Subsequently, Respondent filed a timely motion for rehearing, 8 which we granted. Having granted the motion for rehearing, we withdraw the opinion 9 filed on January 29, 2018, and substitute the following in its place. Consistent with 10 our order granting the motion for rehearing, Respondent filed a timely response 11 (Response) to our notice of proposed disposition, which we have duly considered. 12 Remaining unpersuaded, we affirm. 13 {2} As discussed in our notice of proposed disposition, the WCA entered a 14 supplemental compensation order of default on March 15, 2017, against Respondent; 15 Petitioner filed a petition in the district court to enforce the WCA’s order, pursuant to 16 NMSA 1978, Section 52-5-10(B) (1990); and on August 17, 2017, the district court 17 entered a default judgment to enforce the WCA’s order. [CN 2] It is this latter order 18 that is the subject of this appeal. [CN 2-3] 2 1 {3} In our notice of proposed disposition, we suggested that the time for appealing 2 the WCA order had expired, and Respondent has no right to challenge the underlying 3 compensation order in this appeal, see NMSA 1978, Section 52-5-8 (1989). [CN 3] 4 We further suggested that Respondent had not demonstrated how the district court 5 erred with respect to the order of enforcement from which he is appealing. [CN 5-6] 6 Therefore, we proposed to affirm. [CN 6] 7 {4} In response, Respondent argues that Petitioner took too long to prosecute this 8 case against him. [See generally Response] This appears to be a challenge to orders 9 entered by the WCA. We note, however, that the only issue before this Court is 10 whether the district court erred in entering a default judgment to enforce the WCA’s 11 order, and Respondent has not demonstrated error in this regard. See Farmers, Inc. v. 12 Dal Mach. & Fabricating, Inc., 1990-NMSC-100, ¶ 8, 111 N.M. 6, 800 P.2d 1063 13 (stating that the appellate courts presume that the trial court is correct and the burden 14 is on the appellant to clearly demonstrate that the lower court erred). Respondent may 15 not use his appeal from the district court’s order of enforcement as a mechanism to 16 circumvent a timely notice of appeal from a WCA order. Cf. Resolution Tr. Corp. v. 17 Ferri, 1995-NMSC-055, ¶¶ 6, 9, 120 N.M. 320, 901 P.2d 738 (stating that Rule 18 1-060(B) NMRA should not be used as a substitute for appeal nor as a means of 19 circumventing the appeals process); Deerman v. Bd. of Cty. Comm’rs, 3 1 1993-NMCA-123, ¶ 16, 116 N.M. 501, 864 P.2d 317 (stating that it is well-settled in 2 New Mexico law that Rule 1-060(B)(1) is not to be used as a substitute for appeal). 3 {5} Accordingly, for the reasons stated above and in the notice of proposed 4 summary disposition, we affirm. 5 {6} IT IS SO ORDERED. 6 7 __________________________________ MICHAEL E. VIGIL, Judge 8 WE CONCUR: 9 __________________________ 10 J. MILES HANISEE, Judge 11 __________________________ 12 EMIL J. KIEHNE, Judge 4

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