June 8, 2020- Jacqueline Chavez v. Alyssa J. Phillips, No. A-1-CA-38295

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Odyssey.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
JACQUELINE CHAVEZ,	2
Plaintiff-Appellant,	3
v. 	NO. A-1-CA-38295	4
ALYSSA J. PHILLIPS and	5
LIBERTY MUTUAL INSURANCE,	6
a foreign insurance company	7
doing business in New Mexico,	8
Defendants-Appellees.	9
APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY	10
John F. Davis, District Judge	11
Ellis & Estes, Attorneys at Law	12
James C. Ellis	13
Daniel P. Estes	14
Corrales, NM	15
for Appellant	16
Stiff, Keith & Garcia, LLC	17
Edward F. Snow	18
Albuquerque, NM	19
for Appellees	20
Court of Appeals of New Mexico
Filed 6/8/2020 10:09 AM

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MEMORANDUM OPINION	1
VARGAS, Judge.	2
{1} 	Plaintiff appeals from the district court’s final judgment, entered in this personal	3
injury case tried to a jury, which awarded Plaintiff $12,000 and assigned 60 percent	4
of the fault to Defendant Phillips (Defendant). Unpersuaded by Plaintiff’s docketing	5
statement, we issued a notice of proposed summary disposition, proposing to affirm.	6
Plaintiff filed a memorandum in opposition to our notice, and Defendant filed a	7
memorandum in support. We have considered the parties’ responses and affirm the	8
district court’s judgment.	9
{2} 	On appeal, Plaintiff contends the district court erred by construing Defendant’s	10
stipulation to negligence in a manner that permitted the jury to consider comparative	11
fault. [DS unnumbered 2, 9-10; MIO 2-6] Plaintiff’s docketing statement argued that	12
the evidence supported her motion for judgment as a matter of law on the issue of	13
fault. [DS unnumbered 2, 10-12]	14
{3} 	Our notice proposed to agree with the district court that Defendant’s stipulation	15
[1 RP 66] is subject to different interpretations, and a reasonable interpretation of the	16
language would not include an admission of liability or 100 percent fault. [CN 2; 2 RP	17
340] We proposed to hold that the stipulation is an admission of duty and breach,	18
which did not preclude Defendant’s assertion of Plaintiff’s potential negligence under	19
the comparative fault doctrine. [CN 2-3] We further noted that, in addition to the	20

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language of the stipulation, other documents in the record show that Defendant did not	1
intend to waive her affirmative defense of comparative fault and that Plaintiff should	2
have anticipated Defendant’s assertion of comparative fault about a month prior to	3
trial, at the least. [CN 3-4; 1 RP 13, 139, 147, 149, 165, 184, 252] Lastly, with respect	4
to the stipulation, we proposed to hold that Plaintiff waived her right to claim she was	5
prejudiced by the district court’s decision to permit a theory of comparative fault on	6
the morning of trial, when Plaintiff’s counsel refused the district court’s offer of a	7
continuance. [CN 4-5; 2 RP 331-32, 337-38, 340-41, 346]	8
{4} 	With respect to the district court’s denial of Plaintiff’s motion for judgment as	9
a matter of law, our notice proposed to affirm on grounds that Plaintiff did not supply	10
this Court with adequate information to raise the issue. [CN 5-7]	11
{5} 	In response to our notice, Plaintiff contends this Court’s proposed analysis	12
ignores the context in which the stipulation was entered, asserting that (1) the main	13
contention between the parties surrounded the nature of Plaintiff’s injuries; (2)	14
Defendant’s answers to interrogatories did not suggest a belief Plaintiff was a partial	15
cause of the accident; and (3) Defendant’s counsel told Plaintiff’s counsel there was	16
no need to depose Defendant because she would stipulate to her own negligence.	17
[MIO 4-5] These assertions simply explain Plaintiff’s interpretation of the stipulation;	18
they do not demonstrate error in our proposed analysis. See Hennessy v. Duryea,	19
1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly	20

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held that, in summary calendar cases, the burden is on the party opposing the proposed	1
disposition to clearly point out errors in fact or law.”). We also are not persuaded by	2
Plaintiff’s characterization of our interpretation as being in a vacuum. [MIO 6] To the	3
contrary, our analysis considers the language of the stipulation, the law, the record,	4
and the district court’s rulings on Plaintiff’s interpretation. Furthermore, Plaintiff does	5
not address how she may demonstrate prejudice by the district court’s interpretation	6
of the stipulation when she rejected the opportunity to prepare for trial on that	7
interpretation. See Cordova v. Taos Ski Valley, Inc., 1996-NMCA-009, ¶ 13, 121 N.M.	8
258, 910 P.2d 334 (“A party who has contributed, at least in part, to perceived	9
shortcomings in a trial court’s ruling should hardly be heard to complain about those	10
shortcomings on appeal.”). Based on the foregoing, we are not persuaded that Plaintiff	11
has demonstrated reversible error in the district court’s treatment of Defendant’s	12
stipulation to negligence.	13
{6} 	Lastly, in response to our notice, Plaintiff does not address the district court’s	14
denial of her motion for judgment as a matter of law and our proposed analysis of that	15
issue. When a case is decided on the summary calendar, an issue is deemed abandoned	16
when a party fails to respond to the proposed disposition of that issue. State v.	17
Johnson, 1988-NMCA-029, ¶ 8, 107 N.M. 356, 758 P.2d 306.	18
{7} 	For the reasons stated in our notice and in this opinion, we affirm the district	19
court’s judgment.	20

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{8} 	IT IS SO ORDERED.	1
__________________________________	2
JULIE J. VARGAS, Judge	3
WE CONCUR:	4
_________________________________	5
JENNIFER L. ATTREP, Judge	6
_________________________________	7
ZACHARY A. IVES, Judge	8