May 6, 2019- Property Owners Committee of Rancho Ruidoso Valley Estates v. Y’Hoshua Cohen, No. A-1-CA-37418

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	PROPERTY OWNERS COMMITTEE
3 	OF RANCHO RUIDOSO VALLEY
4 	ESTATES,
5 	Plaintiff-Appellee,
6 v. 	No. A-1-CA-37418
7 	Y'HOSHUA COHEN, a/k/a RABBI
8 	Y'HOSHUA COHEN,
9 	Defendant-Appellant,
10 and
11 	NEW MEXICO DEPARTMENT OF
12 	WORKFORCE SOLUTIONS,
13 	Defendant.
14 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
15 	Daniel A. Bryant, District Judge
16 	Richard A. Hawthorn e
17 	Ruidoso , NM
18 	for Appellee
19 	Y'hoshua Cohen
20 	Alto , NM
2 1 Pro Se Appellant
Court of Appeals of New Mexico
Filed 5/6/2019 9:35 AM
Mark Reynolds

1 	MEMORANDUM OPINION
2 	VANZI, Judge.
3 	{t} 	Defendant has appealed following the entry of an award of summary judgment
4 	in Plaintiffs favor. We previously issued a notice of proposed summary disposition
5 in which we proposed to affirm. Defendant has filed a memorandum in opposition.
6 After due consideration, we remain unpersuaded. We therefore affirm.
7 {2} 	As 	an 	initial 	matter 	we 	note 	that, 	like 	the 	docketing 	statement, 	the
8 memorandum in opposition fails to identify issues with specificity. However, after
9 reading Defendant's submission with care, we understand Defendant' s contentions
10 to be as follows.
11 	{3} 	First, Defendant takes issue with the manner in which court records are made
12 available, 	specifically 	contending 	that 	self-represented 	litigants 	are 	unfairly
13 	disadvantaged by limitations on electronic access. [MIO 7] This is largely a product
14 	of rules of procedure issued and/or approved by our Supreme Court, over which we
15 	generally 	lack authority. 	See generally Rule 	1-005.2 NMRA; 	State v. Serna,
16 	2013-NMSC-033 , ,-r 14 , 305 P.3d 936 ("The ultimate rule making authority over
17 procedure resides in [the New Mexico Supreme Court], including the rules of
18 	evidence. 	[The 	New 	Mexico 	Supreme] 	Court's 	plenary 	authority 	to 	regulate
19 procedure stems from our constitutional power of superintending control over all
2

1 inferior courts." (internal quotation marks and citations omitted)); cf Lovelace Med.
2 	Ctr. 	v. Mendez, 	1991-NMSC-002, 1 15, 111 N.M. 336, 805 P.2d 603 ("[R]ules
3 relating to pleading, practice and procedure in the courts, particularly where those
4 rules relate to court management or housekeeping functions, may be modified by a
5 subsequent rule 	promulgated by the 	Supreme 	Court"). 	We 	acknowledge 	that
6 electronic 	access 	may 	be 	a 	significant 	convenience. 	However, 	under 	the
7 circumstances presented, we decline to entertain Defendant's suggestion that access
8 via traditional means violates self-represented litigants' constitutional rights. See
9 generally Gallegos v. Sw. Cmty. Health Servs., 1994-NMCA-037, 1 17, 117 N.M.
10 481, 872 P.2d 899 ("Under the minimum or rational basis level of scrutiny, [a rule of
11 	procedure] 	is presumed constitutional, and the burden is on [the p ]laintiff to
12 	demonstrate that it is clearly arbitrary and unreasonable, not just that it is possibly
13 	so."); see also Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, 115, 137 N.M.
14 	339,110 P.3d 1076 (explaining that this Court has no duty to review an argument that
15 	is not adequately developed with facts, citation to the record, and authority).
16 	{4} 	Next, we understand Defendant to renew his argument that the district court
17 erred in failing to ensure that a scheduling order was entered, and in failing to hear
18 	a motion to dismiss pursuant thereto. [MIO 8] However, as we observed in the notice
19 of proposed summary disposition, [CN 2-3] Defendant failed to bring this to the
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1 district court's attention in a timely fashion; and absent a showing of prejudice,
2 Defendant's assertions of error present no basis for relief. See generally Mitchell v.
3 Allison, 1949-NMSC-070, ,-r 14, 54 N.M. 56, 213 P.2d 231 ("Unless the trial court's
4 attention is called in some manner to the fact that it is committing error, and given an
5 opportunity to correct it, cases will not be reversed because of errors which could and
6 would have been corrected in the trial court, if they had been called to its attention.");
7 El Paso Elec. Co. v. Real Estate Mart, Inc. , 1982-NMCA-l l 7, ,-r 31, 98 N.M. 570,
8 651 P .2d 105 ("Every error does not warrant reversal, and we will not reverse absent
9 a showing of prejudice.").
10 	{5} 	Defendant devotes a substantial portion of his memorandum in opposition to
11 	his contention that Plaintiff lacked standing. [MIO 7-8, 9-14] However, as we
12 explained, [CN 5-6] as a homeowners' association Plaintiff made a prima facie
13 	showing of entitlement to pursue the underlying action to collect assessments which
14 Defendant had failed to pay. [RP 217-22] See, e.g., Allen v. Timberlake Ranch
15 Landowners Ass 'n., 2005-NMCA-l 15 , 138 N.M. 318, 119 P.3d 743 (illustrating the
16 	authority of property owners' associations to collect assessments). See generally Los
17 	Vigiles Land Grantv. Rebar Haygood Ranch, LLC, 2014-NMCA-Ol 7, ,-r20, 317 P.3d
18 	842 (observing that where the evidence in the record indicated that the plaintiff
19 	organization had standing, and where there was no evidence in the record to the
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1 contrary, the defendant's unsupported standing argument did not provide a basis for
2 attack on appeal). We further note that Defendant did not file a timely response to
3 Plaintiffs motion for summary judgment. [RP 266-67] Under the circumstances, we
4 perceive no error. See generally Freeman v. Fairchild, 2018-NMSC-023 ,, 21 , 416
5 P.3d 264 ("[T]he district court may grant summary judgment if the moving party has
6 made a prima facie case of entitlement to summary judgment and the non-moving
7 party has failed to respond despite adequate notice and opportunity to be heard.").
8 	{6} 	We understand Defendant to argue that a "stack of exhibits" [MIO 11] that he
9 submitted in association with his later-filed motion for reconsideration presented a
10 	genuine issue of material fact as to Plaintiffs standing. [MIO 9-13] However,
11 	because the record before us does not reflect that the district court actually exercised
12 	its discretion to consider these new materials, [RP 289] they present no basis for relief
13 	on appeal. See Deaton v. Gutierrez, 2004-NMCA-043,, 9, 135 N.M. 423, 89 P.3d
14 	672 (explaining that where the defendants moved for reconsideration of an award of
15 	summary judgment, filing nearly 100 pages of documentation, most of which were
16 not previously filed, the trial court was within its discretion to refuse to consider the
17 additional materials; and insofar as the trial court was acting within its discretion in
18 	refusing to consider the materials, we will not consider the additional materials
19 	submitted 	with 	the 	motion 	for 	reconsideration); 	cf 	Rivera 	v. 	Trujillo,
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1 1999-NMCA-129, 119, 128 N.M. 106,990 P.2d 219 (affirming that the trial court
2 may use its discretion not to consider untimely presented materials filed with a
3 motion to reconsider).
4 	{7} 	Defendant further argues that Plaintiff should have been required to provide
5 additional information and substantiation relative to the assessment(s) and/or fine(s)
6 that Plaintiff claimed to have been due, in conformity with one or more statutory
7 provisions pertaining to homeowners' 	associations generally. 	[MIO 	16-18] We
8 recognize that these provisions, if invoked in a clear and timely fashion, might have
9 entitled Defendant to receive additional information. However, we fail to see how
10 they bear upon the propriety of the disposition rendered below. As we previously
11 	observed in the notice of proposed summary disposition, [CN 6- 7] Plaintiff submitted
12 	an affidavit in support of its motion for summary judgment, and as a duly sworn
13 	statement by an individual with knowledge, the affidavit supplied meaningful support
14 	for Plaintiffs motion, which Defendant was obligated to refute in a timely and
15 	intelligible fashion with affidavits of his own. See generally Rule l-056(E) NMRA.
16 Once again, in light of Defendant' s failure to respond to the motion for summary
17 judgment , we perceive no error. See Freeman, 2018-NMSC-023,121 ("[T]he district
18 	court may grant summary judgment if the moving party has made a prima facie case
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1 of entitlement to summary judgment and the non-moving party has failed to respond
2 despite adequate notice and opportunity to be heard.").
3 	{8} 	Finally, Defendant takes issue with a reference to a "material mans lien," and
4 	suggests that an order entered by a different judge or judges in an apparently separate
5 case 	should 	be 	regarded 	as 	"case 	law" 	which 	somehow 	"barred" 	Plaintiffs
6 "retaliatory and capricious" actions in this case. [MIO 18] Because the argument is
7 both incomprehensible and unsupported by citation to illuminating authority of any
8 kind, we decline to consider it further. See generally Headley, 2005-NMCA-045,
9 ,r 15 , ( explaining that this Court has no duty to review arguments that are not
10 adequately developed with facts, citation to the record, and authority).
11 	{9} 	Accordingly, for the reasons 	stated in the notice 	of proposed summary
12 disposition and above, we affirm.
13 	{IO} 	IT IS SO ORDERED.
14
15
16 WE CONCUR:
17 lJ .	lL,~~18 	M. MONICA ZAMO 	ief Judge
19 	1rtn-- ~20 	KRISINA BOGAUS,Judge
7