Western Agriculture v. Balderas

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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 WESTERN AGRICULTURE, RESOURCE 3 AND BUSINESS ADVOCATES, LLP, 4 Plaintiff-Appellant, 5 v. 6 7 8 9 10 11 No. A-1-CA-36840 HECTOR BALDERAS, IN HIS OFFICIAL CAPACITY AS NEW MEXICO ATTORNEY GENERAL, and BRITTNEY MARTINEZ, CUSTODIAN OF RECORDS FOR NEW MEXICO ATTORNEY GENERAL, Defendants-Appellees. 12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Valerie A. Huling, District Judge 14 Western Agriculture, Resource and Business Advocates, LLP 15 A. Blair Dunn 16 Albuquerque, NM 17 for Appellant 18 19 20 21 Office of the New Mexico Attorney General Ari Biernoff, Assistant Attorney General Olga Serafimova, Assistant Attorney General Santa Fe, NM 22 for Appellees 1 MEMORANDUM OPINION 2 HANISEE, Judge. 3 {1} Plaintiff Western Agriculture, Resource and Business Advocates, LLP, appeals 4 an adverse summary judgment. Our notice of proposed summary disposition 5 addressed each of the issues raised in Plaintiff’s docketing statement, ultimately 6 proposing to affirm. [CN 8] Defendants New Mexico Attorney General Hector 7 Balderas and Custodian of Records Brittney Martinez have filed a memorandum in 8 support of that proposed summary disposition [MIS 1], and Plaintiff has filed a 9 memorandum in opposition [MIO 1]. Having duly considered those filings, we now 10 affirm. 11 {2} Our calendar notice noted that Plaintiff’s response to the motion for summary 12 judgment in the district court failed to establish any dispute as to any material facts 13 below, and Plaintiff’s memorandum in opposition does not dispute that reading of the 14 record below. [CN 3-5] Thus, our analysis in this appeal is limited to the question of 15 whether Defendants were entitled to judgment as a matter of law on the basis of the 16 undisputed facts. [CN 3] 17 {3} Having established that analytical framework, we proceeded to address the 18 appellate issues raised by Plaintiff. [CN 5-8] Thus, we proposed to conclude that the 19 common interest doctrine, upon which the district court relied, does not require any 2 1 particular agreement or contract, and that its application is not limited to the parties 2 in ongoing litigation. [CN 5-6] Then, relying upon In re Adoption of Doe, 19843 NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329, we also proposed to hold that there 4 is no temporal limitation on that doctrine. [CN 6-7] And, finally, we proposed that 5 under the undisputed facts established below, there was no basis upon which the 6 Defendants’ custodian or the district court could have distinguished between the 7 various communications at issue in this case for purposes of the Inspection of Public 8 Records Act (IPRA), NMSA, 1978, §§ 14-2-1 to -12 (1971, as amended through 9 2013). 10 {4} Plaintiff’s memorandum in opposition to that proposed summary disposition, 11 however, does not address any of those issues. Instead, Plaintiff argues, generally, 12 about the importance of the IPRA. As Plaintiff’s memorandum makes no attempt to 13 respond to the actual bases of our proposed disposition of the issues raised in the 14 docketing statement, those issues are “deemed abandoned.” State v. Johnson, 15 1988-NMCA-029, ¶ 8, 107 N.M. 356, 758 P.2d 306. Ultimately, because Plaintiff is 16 opposing a notice of proposed summary disposition, it has the burden to “come 17 forward and specifically point out errors of law and fact.” State v. Mondragon, 198818 NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d 1003, superseded by statute on other 19 grounds as stated in State v. Harris, 2013-NMCA-031, ¶ 3, 297 P.3d 374. Having 3 1 chosen not to even address the law and facts discussed in our notice of proposed 2 summary disposition, Plaintiff has failed to meet its burden on appeal and the 3 summary judgment entered below is affirmed. 4 {5} IT IS SO ORDERED. 5 6 ________________________________ J. MILES HANISEE, Judge 7 WE CONCUR: 8 ____________________________ 9 MICHAEL E. VIGIL, Judge 10 ____________________________ 11 STEPHEN G. FRENCH, Judge 4

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