Aragon v. Allstate

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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 2 3 4 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO ROSANNE ARAGON, individually, ROSANNE ARAGON, as parent and next friend of JOE ANTHONY ALDERETE, a minor child, 6 Plaintiff-Appellant, 7 v. No. A-1-CA-36715 8 ALLSTATE INSURANCE COMPANY, 9 and FRANKIE CABRERA, 10 Defendants-Appellees. 11 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 12 Francis J. Mathew, District Judge 13 14 15 16 Mescall Law Firm, P.C. Thomas J. Mescall, II Phillip Patrick Baca Albuquerque, NM 17 for Appellant 18 19 20 21 Chapman and Priest, P.C. Stephen M. Simone Mitchell Freedman Albuquerque, NM 22 23 24 25 Stiff, Keith & Garcia, LLC Ann L. Keith Edward F. Snow Albuquerque, NM 1 for Appellee Allstate Insurance Company 2 on the contractual claims 3 Frizzell Law Firm, P.C. 4 David W. Frizzell 5 Albuquerque, NM 6 for Appellee Frankie Cabrera 7 MEMORANDUM OPINION 8 ZAMORA, Judge. 9 {1} Plaintiff Rosanne Aragon, as an individual and in her capacity as parent and 10 next friend of Joe Anthony Alderete (Child), appeals following jury verdicts in favor 11 of Defendants Allstate Insurance Company (Allstate) and Frankie Cabrera (Cabrera) 12 on Plaintiff’s punitive damages and insurance bad faith claims. [DS 2] We issued a 13 notice proposing to affirm. Plaintiff has filed a memorandum in opposition, and 14 Allstate has filed a memorandum in support, both of which we have duly considered. 15 Remaining unpersuaded by Plaintiff’s arguments, we now affirm. 16 {2} Of the six issues Plaintiff raised in her docketing statement, she continues to 17 seek reversal on the bases of only Issues 1, 2, 3, 5, and 6. [MIO 3-9] We therefore do 18 not address Plaintiff’s Issue 4. See State v. Salenas, 1991-NMCA-056, ¶ 2, 112 N.M. 19 268, 814 P.2d 136 (stating that where a party has not responded to this Court’s 20 proposed disposition of an issue, that issue is deemed abandoned). 2 1 {3} The pertinent background information was previously set forth in the notice of 2 proposed summary disposition. We will avoid undue reiteration here, focusing instead 3 on the content of the memorandum in opposition. [See CN 3] 4 {4} Addressing Plaintiff’s issues in numerical order, we note Plaintiff first argues 5 the district court erred in excluding various facts regarding Cabrera’s criminal history 6 and an unrelated criminal case in which Cabrera was also alleged to have rear-ended 7 a car while he was driving under the influence. [MIO 7-9, 32-44] We proposed to hold 8 the evidence Plaintiff sought to introduce was irrelevant and inadmissible under Rule 9 11-404(B)(1) NMRA. In her memorandum in opposition, Plaintiff cites inapposite or 10 non-binding authority in support of the repetitious arguments already made in her 11 docketing statement. The only relevant authority Plaintiff cites supports affirmance 12 of the district court’s exclusion of the evidence. See DeMatteo v. Simon, 199113 NMCA-027, ¶¶ 3-4, 112 N.M. 112, 812 P.2d 361 (holding pre- and post-accident 14 driving records were inadmissible to show a habit of negligent driving). We therefore 15 conclude the district court did not err by excluding evidence of Cabrera’s driving 16 history and criminal record. 17 {5} Plaintiff next continues to argue the district court commented on the evidence 18 when it allowed counsel for Allstate to argue the district court had previously 19 determined a defense witness’s affidavit was not submitted in bad faith. [MIO 4-5, 28- 3 1 29] As we noted in our proposed disposition, the statement Plaintiff challenges 2 occurred during closing argument and was made by Allstate, not the district court. 3 [CN 7] In response, Plaintiff argues the statement by Allstate amounted to a comment 4 by the district court because it occurred immediately after a sidebar ruling, and 5 Allstate stated the district court authorized it to make such a statement. [MIO 4, 28-29] 6 Plaintiff’s suggested equivalency of a party’s argument following a ruling and a 7 comment on the evidence by the district court is unavailing and unsupported by 8 authority. See ITT Educ. Servs., Inc. v. N.M. Taxation & Revenue Dep’t, 19989 NMCA-078, ¶ 10, 125 N.M. 244, 959 P.2d 969 (stating this Court will not consider 10 propositions that are unsupported by citation to authority). We therefore conclude the 11 district court did not improperly comment on the evidence. 12 {6} Plaintiff next argues the district court erred in denying its motion for contempt 13 based on an affidavit Plaintiff asserts was made in bad faith. [MIO 3, 25-27] We 14 proposed to conclude Plaintiff had not demonstrated the district court’s determination 15 was unsupported by evidence or based on a misunderstanding of the law because 16 Plaintiff’s argument was based on assertions of counsel, rather than facts of record, 17 and because this Court does not reweigh evidence. [CN 9] Beyond repeating the 18 arguments and contrary assertions in her docketing statement and arguing Allstate 19 does not rebut her allegations of perjury, Plaintiff does not demonstrate either error 4 1 by the district court or error in fact or law in our notice of proposed disposition. The 2 appellate court presumes the trial court is correct. The burden is on the appellant to 3 clearly demonstrate the trial court erred. See Farmers, Inc. v. Dal Mach. & 4 Fabricating, Inc., 1990-NMSC-100, ¶ 8, 111 N.M. 6, 800 P.2d 1063. “Our courts 5 have repeatedly held that, in summary calendar cases, the burden is on the party 6 opposing the proposed disposition to clearly point out errors in fact or law.” Hennessy 7 v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683. We therefore 8 conclude the district court did not err in denying Plaintiff’s motion for contempt. 9 {7} Plaintiff next argues the district court erred in allowing Allstate’s expert to 10 testify regarding the legal viability of Plaintiff’s claim. [MIO 5, 30] We proposed to 11 conclude the admission of the expert testimony was not erroneous because Plaintiff 12 had not demonstrated his objection was preserved and had not provided facts 13 sufficient for review. [CN 12] Again, as in her docketing statement, Plaintiff does not 14 explain the substance of the expert testimony or her objection. [See DS 12; MIO 5, 30] 15 Counsel must set out all relevant facts in the docketing statement, including those 16 facts supporting the district court’s decision. Thornton v. Gamble, 1984-NMCA-093, 17 ¶ 18, 101 N.M. 764, 688 P.2d 1268 (stating that “the docketing statement must state 18 all facts material to the issues” and explaining “[t]his means that the docketing 19 statement should recite any evidence which supports the trial court’s findings”). “We 5 1 will not search the record for facts, arguments, and rulings in order to support 2 generalized arguments.” Muse v. Muse, 2009-NMCA-003, ¶ 72, 145 N.M. 451, 200 3 P.3d 104. Moreover, this Court has no duty to review an argument that is not 4 adequately developed. Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 5 N.M. 339, 110 P.3d 1076 (declining to entertain a cursory argument that included no 6 explanation of the party’s argument and no facts that would allow the Court to 7 evaluate the claim). We therefore conclude the district court did not err in admitting 8 the expert’s testimony. 9 {8} Finally, Plaintiff continues to argue the district court erred in dismissing Child’s 10 insurance bad faith claim on the ground a minor cannot legally enter into a contract. 11 [MIO 6, 31] As we noted in our proposed disposition, this issue appears to be based 12 on the argument the district court dismissed Plaintiff’s claims on behalf of Child on 13 grounds not argued by the parties. [CN 13; see DS 13] While we acknowledge, as 14 Plaintiff points out, the damages awarded to Child resulted from the liability trial, 15 Plaintiff has again failed to provide any citation to facts or authority demonstrating 16 how the district court’s ruling was erroneous. See Muse, 2009-NMCA-003, ¶ 72; 17 Headley, 2005-NMCA-045, ¶ 15; ITT Educ. Servs., Inc., 1998-NMCA-078, ¶ 10. We 18 therefore conclude the district court did not err in dismissing Child’s insurance bad 19 faith claim. 6 1 {9} Accordingly, for the reasons stated above and in our notice of proposed 2 disposition, we affirm. 3 {10} IT IS SO ORDERED. 4 5 M. MONICA ZAMORA, Judge 6 WE CONCUR: 7 8 J. MILES HANISEE, Judge 9 10 DANIEL J. GALLEGOS, Judge 7

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