Hinojos v. Poulos ( 2022 )

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-39473
JACOB HINOJOS,
Plaintiff-Appellant,
v.
VICTOR F. POULOS, as Personal
Representative of the ESTATE OF
ROBERT H. KERN,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
James T. Martin, District Judge
Jacob Hinojos
El Paso, TX
Pro Se Appellant
Poulos & Coates LLP
Greig Coates
Las Cruces, NM
for Appellee
MEMORANDUM OPINION
IVES, Judge.
{1} Plaintiff appeals the dismissal of his complaint. In this Court’s notice of proposed
disposition, we proposed to summarily affirm. [CN 1] Plaintiff filed a memorandum in
opposition and motion to amend the docketing statement, which we have duly
considered. Remaining unpersuaded, we deny Plaintiff’s motion to amend the docketing
statement because the issues raised are not viable, and affirm. See State v. Munoz,
1990-NMCA-109, ¶ 19, 111 N.M. 118, 802 P.2d 23 (indicating that we deny motions to
amend the docketing statement if the issues that the appellant is seeking to raise are
not viable).
{2} In his memorandum in opposition, Plaintiff maintains that dismissal was not
proper because he is attempting to sue Defendant in his individual capacity—despite
the clear statement in the complaint that Defendant is being sued as the personal
representative on behalf of the Estate of Robert H. Kern—and thus principles of res
judicata do not bar the filing of his complaint. [MIO 2-3] Plaintiff, however, has not
asserted any new facts, law, or argument that persuade this Court that our notice of
proposed disposition was erroneous. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24,
124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly held that, in summary
calendar cases, the burden is on the party opposing the proposed disposition to clearly
point out errors in fact or law.”); State v. Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M.
421, 759 P.2d 1003 (stating that a party responding to a summary calendar notice must
come forward and specifically point out errors of law and fact, and the repetition of
earlier arguments does not fulfill this requirement), superseded by statute on other
grounds as stated in State v. Harris, 2013-NMCA-031, ¶ 3, 297 P.3d 374. We,
therefore, refer Plaintiff to our analysis therein.
{3} To the extent that Plaintiff now argues that his claim for emotional distress was
not brought in the prior suit and thus is not subject to dismissal under principles of res
judicata, we disagree. See Sandel v. Sandel, 2020-NMCA-025, ¶ 15, 463 P.3d 510(“Claims present the same ‘cause of action’ for purposes of res judicata if they arise out
of the same transaction, or series of connected transactions.” (alteration, internal
quotation marks, and citation omitted)). Additionally, Plaintiff appears to argue that he
was inappropriately denied discovery on his claims. [MIO 3] It is well settled, however,
that a motion to dismiss tests the legal sufficiency of the complaint and a complaint that
is properly dismissed on its face does not warrant a period of discovery. See Lohman v.
Daimler-Chrysler Corp., 2007-NMCA-100, ¶ 4, 142 N.M. 437, 166 P.3d 1091 (“A motion
to dismiss tests the legal sufficiency of the complaint.”).
{4} To the extent Plaintiff seeks to add an issue regarding inadequate notice of the
costs and attorney fees ordered against him as sanctions, this issue is undeveloped and
lacks supporting authority, and we decline to address it further. See Curry v. Great Nw.
Ins. Co., 2014-NMCA-031, ¶ 28, 320 P.3d 482 (“Where a party cites no authority to
support an argument, we may assume no such authority exists.”); see also Corona v.
Corona, 2014-NMCA-071, ¶ 28, 329 P.3d 701 (“This Court has no duty to review an
argument that is not adequately developed.”). Additionally, Plaintiff attempts to add an
“issue” to the docketing statement, claiming he is entitled to appeal costs upon
prevailing in the appeal. [MIO 4] Nonetheless, any such issue is not viable because
Plaintiff is not the prevailing party in this appeal. See Rule 12-403(A) NMRA (“[T]he
appellate court may, in its discretion, award costs to the prevailing party on request.”);
Fort Knox Self Storage, Inc. v. W. Techs., Inc., 2006-NMCA-096, ¶ 34, 140 N.M. 233,
142 P.3d 1 (“Under New Mexico law, at the end of the entire action, the prevailing party
is the party who wins on the merits or on the main issue of the case.” (internal quotation
marks and citation omitted)); Munoz, 1990-NMCA-109, ¶ 19.
{5} Accordingly, for the reasons stated in our notice of proposed disposition and
herein, we affirm.
{6} IT IS SO ORDERED.
ZACHARY A. IVES, Judge
WE CONCUR:
JENNIFER L. ATTREP, Judge
JACQUELINE R. MEDINA, Judge