November 24, 2025- Reena Roman v. Seema Christensen, No. A-1-CA-40464

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Court of Appeals of New Mexico Filed 11/24/2025 11:11 AM
Filing Date: November 24, 2025
Mark Reynolds
No. A-1-CA-40464
IN THE MATTER OF THE ESTATE
OF SALOCHNA D. GROVER, Deceased,
REENA ROMAN and DAVID ROMAN,
Petitioners-Appellants,
SEEMA CHRISTENSEN,
Interested Party-Appellee.
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY David Reeb, Jr., District Court Judge
Hurley Toevs Styles Hamblin & Panter PA Gregory W. Mackenzie Lalita Devarakonda Albuquerque, NM
for Appellants
Harmon, Barnett & Morris, P.C. Tye Harmon Clovis, NM
Doerr & Knudson, P.A. Randy Knudson Portales, NM
1 2 3 4 5 6 7 8 9 V. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 for Appellee

OPINION	1
ATTREP, Judge.	2
{1} Petitioner Reena Roman appeals the district court’s dismissal with prejudice	3
of her creditor’s claim against the probate estate of her mother as a sanction for her	4
noncompliance with a scheduling order. Petitioner argues the district court abused	5
its discretion in imposing the sanction of dismissal on the grounds that the	6
scheduling order at issue was ambiguous, her noncompliance was not willful, and	7
the totality of the circumstances did not warrant such a harsh sanction. Because	8
Petitioner understood her obligations under the scheduling order, any ambiguity on	9
the face of that order is not a bar to sanctions in this case. Further, Petitioner has not	10
adequately impeached the district court’s finding of willful noncompliance or	11
otherwise convinced us that the district court committed a clear error of judgment in	12
imposing the sanction of dismissal under the totality of the circumstances. We	13
accordingly affirm.	14
BACKGROUND	15
{2} Petitioner was appointed the personal representative of the Estate of Salochna	16
Grover (Decedent), Petitioner’s mother. Approximately two months later, in May	17
2016, Petitioner also asserted a creditor’s claim against the Estate, seeking	18
reimbursement for caregiving and financial assistance she allegedly provided to	19
Decedent prior to her death, as well as unpaid guardian, conservator, and legal fees.	20

2
See NMSA 1978, § 45-3-804(A) (1983). Petitioner was represented by different	1
attorneys when acting as personal representative versus creditor. A notice of	2
disallowance of claim was filed by the attorney representing Petitioner in her	3
capacity as the personal representative. Petitioner then petitioned the district court	4
in August 2016 for allowance of her creditor’s claim.1 See NMSA 1978, § 45-3-	5
806(A) (1993). Interested Party Seema Christensen, Petitioner’s sister and	6
Decedent’s only other living child, objected to the petition.2 Pursuant to Decedent’s	7
last will and testament, Petitioner and Interested Party are the devisees of equal	8
shares of the residuary estate.	9
{3} The first scheduling conference on Petitioner’s creditor’s claim was held on	10
December 13, 2016. After discussing discovery and dispositive motions deadlines,	11
the district court judge stated, “[A]fter today, you guys can select a time for your	12
trial and just contact my secretary and pencil that in.” Three weeks later, the district	13
court entered a Rule 1-016(B) NMRA scheduling order, which provided deadlines	14
for discovery, motions, and proposed findings of fact and conclusions of law, and	15
ordered the parties to participate in mediation, but did not set a trial date. Over the	16
1Petitioner filed an amended petition approximately one month later to correct
an inaccurate factual recitation and to add a claim for attorney fees. Petitioner was
joined in her creditor’s claim by her husband, David Roman.
2On appeal, Interested Party repeatedly cites Petitioner’s dual role as creditor
and personal representative and suggests this created a conflict of interest. It appears
Interested Party never brought this matter to the district court’s attention, and we
decline to address it for the first time on appeal.

3
next fourteen months, the parties engaged in discovery and two unsuccessful	1
mediations. In April 2018, Petitioner moved the district court to extend the expert	2
witness disclosure deadline and to set a trial date. After Interested Party did not	3
respond to that motion, counsel for Petitioner submitted a proposed order to the	4
district court, which the judge signed, extending the deadlines for expert disclosures	5
and dispositive motions. As for a trial setting, the order simply stated, “There is no	6
trial scheduled at this time.” Petitioner timely disclosed her expert witness on	7
July 31, 2018.	8
{4} The matter then languished for nearly fifteen months until Petitioner filed a	9
request for trial setting on October 24, 2019. Approximately one hour later,	10
Interested Party moved the district court to dismiss Petitioner’s claim with prejudice	11
for lack of prosecution pursuant to Rule 1-041(E)(1) NMRA. In an order dated	12
November 20, 2019, the district court denied Interested Party’s motion, ruling that	13
“Petitioner is not in violation of the existing Rule [1-0]16 [s]cheduling [o]rder	14
entered in this cause and has otherwise taken significant action to bring her claims	15
to trial, including, without limitation, attending two mediation sessions, obtaining an	16
extension of certain disclosure and discovery deadlines and retaining an expert	17
witness, filing the expert witness[’s] report in this cause and requesting a trial	18
setting.” See Rule 1-041(E)(1) (providing that a claim shall not be dismissed	19

4
pursuant to that rule “if the party opposing the motion is in compliance with an order	1
entered pursuant to Rule 1-016”).	2
{5} Another lull in the case then occurred—this time for seven months—until	3
June 24, 2020, when Petitioner filed a request for scheduling conference. A	4
scheduling conference was held on July 29, 2020 (July 2020 Scheduling	5
Conference), at which Petitioner and Interested Party indicated they were ready for	6
trial and only needed a trial date, as well as some final pretrial deadlines. Regarding	7
the trial date, the district court judge told counsel, “You guys are going to have to	8
contact . . . my [trial court administrative assistant (TCAA)] for that. . . . She’ll have	9
to give you the dates when you can do it.” While reviewing pretrial deadlines, the	10
judge further directed, “Counsel will contact my TCAA and get a bench trial date.”	11
Later, the judge told the parties that trial would need to happen in the spring of 2021	12
due to certain family obligations. At the end of the conference, the judge reminded	13
counsel that he would “leave it up to you guys to contact my TCAA for the trial	14
date.” The new scheduling order, which was prepared by Petitioner’s counsel and	15
entered on October 21, 2020 (Scheduling Order), provided, “Trial on [Petitioner’s	16
creditor’s claim] shall be set for the [s]pring of 2021 for a date after March 15, 2021.	17
The trial date will not be continued except in truly exceptional circumstances.”	18
{6} After both parties filed witness lists, nothing further happened in the case for	19
nearly another year—until August 24, 2021—when Petitioner filed another request	20

5
for trial setting. The following day, having not seen the request, the district court	1
filed an order administratively closing the case due to inactivity. The case was	2
reopened when Petitioner filed a notice of case status in which counsel stated that he	3
had requested a trial setting because none had been set pursuant to the Scheduling	4
Order.	5
{7} The district court noticed a status conference for October 13, 2021. Interested	6
Party then filed another motion to dismiss Petitioner’s creditor’s claim (Motion to	7
Dismiss), arguing that “there was no significant action taken by . . . Petitioner to	8
pursue the claim for more than two (2) years” and “Petitioner is not in compliance	9
with the Scheduling Order.” In support, Petitioner cited Rule 1-041. Prior to the	10
October 13, 2021, status conference, Petitioner filed a response to the Motion to	11
Dismiss (Initial Response).3 The gist of Petitioner’s Initial Response was that she	12
was waiting for the district court to set the trial because, according to her, the court	13
stated at the July 2020 Scheduling Conference that “it will issue the trial dates sua	14
sponte.” Additionally, Petitioner claimed, “There is absolutely nothing more that	15
Petitioner and/or her counsel could have done to expedite the matter. Petitioner	16
and/or her counsel cannot set the trial date on their own. The [district c]ourt clearly	17
stated that it would not set the matter until May or June 2021.”	18
3Petitioner filed a response on October 12, 2021, and an amended response on
October 13, 2021, which corrected a factual inaccuracy. Our citations to the Initial
Response are to the October 13, 2021, filing.

6
{8} During the October 13, 2021, status conference, counsel for Petitioner	1
persisted in this position. The district court judge then stated that he would listen to	2
the recording of the July 2020 Scheduling Conference, but noted, “It would be unlike	3
me to say ‘counsel I’m going to set this.’ That’s not typically how I would ever run	4
my docket. Normally, I’d say that you all need to contact my TCAA.” Counsel for	5
Petitioner then interrupted, stating,	6
In fact, your honor, the court did say contact the TCAA. And what we	7
did was we submitted the scheduling order that had the language in it	8
that said the court shall set the trial setting. And so it may very well be	9
that what happened was I just misread the effect of that language. But	10
the way that I read that language is that we were going to get a trial	11
setting issued by the court.	12
The judge concluded the status conference by asking the parties to notify him when	13
the briefing on Interested Party’s Motion to Dismiss was complete.	14
{9} The next day, Petitioner filed a “substituted response” to Interested Party’s	15
Motion to Dismiss (Substituted Response), in which Petitioner acknowledged,	16
“During the [July 2020 S]cheduling [C]onference . . . , the [c]ourt mentioned that	17
the judge’s [TCAA] should be contacted to get the trial date.” Similarly, Petitioner	18
no longer claimed that there was “absolutely nothing” she could have done to	19
expedite the matter. Instead, Petitioner claimed, “While [counsel] could have	20
reached the [c]ourt for setting the trial in February or March 2021, [counsel] was	21
under the impression that the [c]ourt would set the matter” based on the language of	22
the Scheduling Order, which, Petitioner incorrectly asserted, “stated that the [c]ourt	23

7
shall set the matter for trial.” Shortly thereafter, Interested Party filed her reply brief,	1
arguing that the district court “ordered Petitioner’s counsel to obtain the trial setting	2
in spring of 2021.” Interested Party also alerted the district court to the fact Rule	3
1-041 may not apply to this case since it was commenced pursuant to the Probate	4
Code. See Rule 1-041(F)(3) (providing that Rule 1-041 does not apply to	5
“proceedings commenced pursuant to the provisions of the Probate Code”).	6
Nonetheless, Interested Party argued that the district court could dismiss the case	7
pursuant to Rule 1-016(F), which permits sanctions for noncompliance with	8
scheduling orders.	9
{10} Over five and a half years after Petitioner initiated her creditor’s claim, the	10
district court entered a decision letter (First Decision Letter) dismissing Petitioner’s	11
creditor’s claim pursuant to Rule 1-016(F). The district court found that it had	12
repeatedly told counsel during the July 2020 Scheduling Conference to contact the	13
TCAA to obtain a trial setting and that it had told counsel as early as the December	14
13, 2016, scheduling conference to do the same. The district court additionally	15
viewed Petitioner’s counsel’s argument that “the [c]ourt is the cause of delay due to	16
failure to schedule the matter for trial [as] quite disingenuous and arguably dishonest	17
since counsel was specifically instructed on the record to select a date for trial and	18
failed to do so.” Shortly thereafter, the district court entered its order of dismissal,	19
which incorporated the First Decision Letter.	20

8
{11} Petitioner timely moved the district court for reconsideration. Petitioner	1
primarily argued in her motion that dismissal of her claim was unwarranted because	2
counsel did not violate the written Scheduling Order, and because counsel’s actions	3
in failing to call the TCAA were not willful. Petitioner claimed, “Counsel simply	4
forgot the verbal statements from the bench when the [July 2020] Scheduling	5
Conference was held” and, as a result, simply “waited for the trial setting from the	6
[c]ourt to be filed after [s]pring 2021.” During the hearing on Petitioner’s motion for	7
reconsideration, counsel for Petitioner acknowledged that the district court had	8
directed counsel to contact the TCAA for a trial setting but repeatedly asserted that,	9
by the time spring of 2021 came around, he simply had forgotten he was supposed	10
to do so.	11
{12} The district court denied Petitioner’s motion for reconsideration in a decision	12
letter (Second Decision Letter). The district court found that, since the inception of	13
the case, “no attorney has called my [TCAA] to follow up on acquiring a trial	14
setting.” The district court further found that Petitioner’s statement in her Initial	15
Response that the court said it would sua sponte set the trial had been removed from	16
her Substituted Response because it was “false.”4 The district court did not credit	17
4 Petitioner does not directly acknowledge this finding in her briefing but
attempts to avoid it by claiming she “hurriedly filed a timely response to the Motion
[to Dismiss,] which was amended to correctly reflect the factual background.”
Petitioner’s counsel goes on to claim that he listened to the July 2020 Scheduling
Conference prior to the October 13, 2021, status conference, which “triggered the

9
Petitioner’s counsel’s explanation that he had “forgotten” the court’s directive to call	1
the TCAA and instead found that Petitioner had exhibited “a willful failure to follow	2
the court’s directive to schedule a trial followed by an attempt to blame the court for	3
inaction.” An order adopting the Second Decision Letter was entered, and Petitioner	4
appealed.	5
STANDARD OF REVIEW	6
{13} “Sanctions are intended to preserve the integrity of the judicial process and	7
the due process rights of the other litigants.” Weiss v. THI of N.M. at Valle Norte,	8
LLC, 2013-NMCA-054, ¶ 17, 301 P.3d 875 (internal quotation marks and citation	9
omitted). In dismissing Petitioner’s creditor’s claim as a sanction for her	10
noncompliance with the Scheduling Order, the district court relied on Rule 1-016(F).	11
Rule 1-016 is a rule “geared toward managing and expediting civil litigation to a	12
final disposition.” Rodriguez ex rel. Rodarte v. Sanchez, 2019-NMCA-065, ¶ 20,	13
451 P.3d 105. To that end, Subsection (F) empowers the district courts to impose	14
memory pertaining to the trial judge’s comments of calling his TCAA.” We first
observe that these factual assertions are made without citation to the record; and
based on our review, Petitioner never made these assertions below. We therefore do
not rely on them. See Muse v. Muse, 2009-NMCA-003, ¶ 51, 145 N.M. 451, 200
P.3d 104 (“It is not our practice to rely on assertions of counsel unaccompanied by
support in the record. The mere assertions and arguments of counsel are not
evidence.”). Furthermore, these factual assertions do not explain why Petitioner’s
counsel only acknowledged the district court’s directive to call the TCAA when the
judge expressed disbelief with counsel’s suggestion that the court said it would sua
sponte set the trial.

10
sanctions when, as is relevant here, “a party or party’s attorney fails to obey a	1
scheduling . . . order.” Rule 1-016(F). In particular, “the judge . . . may make such	2
orders with regard thereto as are just, including any of the orders provided in	3
Subparagraphs (b), (c) or (d) of Subparagraph (2), of Paragraph B of Rule 1-037	4
[NMRA],” the rule governing failures to make discovery. Rule 1-016(F). The district	5
court’s First Decision Letter specifically cited Rule 1-037(B)(2)(c), which, in turn,	6
allows for “an order . . . dismissing the action or proceeding or any part thereof.”	7
Rule 1-037(B)(2)(c). Although we have little case law in New Mexico directly	8
dealing with Rule 1-016(F) sanctions, we apply the same standards developed for	9
Rule 1-037(B)(2) sanctions, as directed by Rule 1-016(F).5 See Carter v. Jablonsky,	10
121 F. App’x 888, 889 (2d Cir. 2005); see also Lowery v. Atterbury, 1992-NMSC-	11
5Additionally, although the district court in this case did not base its decision
on Rule 1-041(B), we find case law construing the same persuasive. Similar to Rules
1-037(B)(2) and 1-016(F), Rule 1-041(B) permits the district court to dismiss a claim
for failure to obey a court order. The standards in these contexts overlap significantly
and the same considerations are at play when considering a sanction that denies an
adjudication on the merits. Compare, e.g., Newsome v. Farer, 1985-NMSC-096,
¶¶ 27-29, 103 N.M. 415, 708 P.2d 327 (requiring, in the Rule 1-041(B) context, that
a party’s conduct be willful and the trial court consider lesser sanctions to sustain
dismissal of an action), with Sandoval v. Martinez, 1989-NMCA-042, ¶¶ 13, 22, 109
N.M. 5, 780 P.2d 1152 (requiring, in the Rule 1-037 context, that a party’s conduct
be willful and the trial court consider lesser sanctions to sustain dismissal of an
action); see also United Nuclear Corp. v. Gen. Atomic Co., 1980-NMSC-094, ¶ 387,
96 N.M. 155, 629 P.2d 231 (relying on case law construing Fed. R. Civ. P. 41(b) in
evaluating N.M. R. Civ. P. 37(b)(2) sanctions); Malone v. U.S. Postal Serv., 833
F.2d 128, 130 (9th Cir. 1987) (“The standards governing dismissal for failure to obey
a court order are basically the same under [Fed. R. Civ. P. 16(f), Fed. R. Civ. P.
37(b)(2)(C), and Fed. R. Civ. P. 41(b).]”).

11
001, ¶ 12 n.2, 113 N.M. 71, 823 P.2d 313 (“We cite federal cases only to the extent	1
that we find them instructive and not as binding precedent.”).	2
{14} We thus review a district court’s imposition of sanctions issued pursuant to	3
Rule 1-016(F), as well as Rule 1-037(B)(2), for an abuse of discretion. See Lewis ex	4
rel. Lewis v. Samson, 2001-NMSC-035, ¶ 13, 131 N.M. 317, 35 P.3d 972 (“We	5
review a trial court’s decision to impose discovery sanctions under Rule 1-037(B)(2)	6
for an abuse of discretion.”); Sanchez v. Borrego, 2004-NMCA-033, ¶¶ 10-12, 135	7
N.M. 192, 86 P.3d 617 (providing, in the context of a scheduling order violation,	8
that “[o]n appeal, we review sanctions imposed by the trial court for discovery	9
violations and violations of court orders for an abuse of discretion”); see also	10
Newsome v. Farer, 1985-NMSC-096, ¶ 22, 103 N.M. 415, 708 P.2d 327 (“New	11
Mexico trial courts also have the power to dismiss cases sua sponte for disregard of	12
court orders directed toward case management. Such dismissal is discretionary with	13
the court and therefore subject to review only to determine whether there was an	14
abuse of discretion.” (internal quotation marks and citations omitted)).	15
{15} “The choice of sanctions lies within the sound discretion of the trial court.”	16
Gonzales v. Surgidev Corp., 1995-NMSC-047, ¶ 33, 120 N.M. 151, 899 P.2d 594	17
(text only) (citation omitted). Dismissal with prejudice, however, “is a drastic	18
sanction that is [to be] used sparingly.” Newsome, 1985-NMSC-096, ¶ 27. We	19
accordingly “more closely scrutinize, albeit still under an abuse of discretion	20

12
standard, the severe sanction of dismissal,” Lewis, 2001-NMSC-035, ¶ 13, insuring	1
that its imposition is the result of willful noncompliance with a court order,	2
Gonzales, 1995-NMSC-047, ¶ 31; see also United Nuclear Corp. v. Gen. Atomic	3
Co., 1980-NMSC-094, ¶ 202, 96 N.M. 155, 629 P.2d 231 (providing that “the denial	4
of an opportunity for a hearing on the merits[] may only be imposed when the failure	5
to comply is due to the willfulness, bad faith or fault of the disobedient party”).	6
“Because the trial court’s decision must be based on its conclusions about a party’s	7
conduct and intent, implicit in the standard of review is the question of whether the	8
court’s findings and decision are supported by substantial evidence.” Enriquez v.	9
Cochran, 1998-NMCA-157, ¶ 20, 126 N.M. 196, 967 P.2d 1136. See generally	10
McDonald v. Zimmer Inc., 2020-NMCA-020, ¶ 23, 461 P.3d 930 (“Substantial	11
evidence is such relevant evidence as a reasonable mind might accept as adequate to	12
support a conclusion.” (internal quotation marks and citation omitted)).	13
{16} “We will not reverse a dismissal [as a sanction] unless, after reviewing the	14
full record and the reasons the district court gave for its order, we are left with a	15
definite and firm conviction that the court below committed a clear error of judgment	16
in the conclusion it reached upon a weighing of the relevant factors.” Sandoval v.	17
Martinez, 1989-NMCA-042, ¶ 23, 109 N.M. 5, 780 P.2d 1152 (internal quotation	18
marks and citation omitted). That is, “[i]t is not our responsibility as a reviewing	19
court to say whether we would have chosen a more moderate sanction. Instead, we	20

13
merely address whether we are convinced that the trial court’s decision is irrational	1
or clearly against logic.” Lewis, 2001-NMSC-035, ¶ 23 (internal quotation marks	2
and citation omitted). Finally, “[w]e emphasize . . . that it is the appellant’s burden	3
to persuade us that the district court erred” because “there is a presumption of	4
correctness in the rulings and decisions of the district court.” Hall v. City of	5
Carlsbad, 2023-NMCA-042, ¶ 5, 531 P.3d 642 (internal quotation marks and	6
citation omitted); see also Premier Tr. of Nev., Inc. v. City of Albuquerque, 2021-	7
NMCA-004, ¶ 10, 482 P.3d 1261 (“[I]t is the appellant’s burden to demonstrate, by	8
providing well-supported and clear arguments, that the district court has erred.”).	9
DISCUSSION	10
{17} We distill Petitioner’s various arguments why the district court erred by	11
dismissing her creditor’s claim with prejudice into three main points. First, Petitioner	12
asserts that the Scheduling Order was ambiguous and the sanction of dismissal is	13
only appropriate for a violation of an unambiguous order. Second, Petitioner argues	14
that substantial evidence does not support a finding that any violation of the	15
Scheduling Order was willful. Third, Petitioner contends that the totality of the	16
circumstances does not warrant the sanction of dismissal. 6 For the reasons we	17
discuss below, we reject Petitioner’s arguments.	18
6Petitioner additionally argues that the district court erred to the extent it
dismissed her creditor’s claim under Rule 1-041(E)(1) for lack of prosecution. The
district court acknowledged the limitation in Rule 1-041, providing that the rule does

14
I. Any Ambiguity in the Scheduling Order Does Not Bar Sanctions in This	1
Case	2
{18} Relying on federal law, Petitioner argues that a court may impose sanctions	3
under Rule 1-016(F) only if the order at issue is unambiguous.7 See Act Now to Stop	4
War & End Racism Coal. & Muslim Am. Soc’y Freedom Found. v. Dist. of	5
Columbia, 846 F.3d 391, 414 (D.C. Cir. 2017) (“[A] court may award sanctions	6
under [Fed. R. Civ. P.] 16(f) only where a party violates an unambiguous order.”).	7
Petitioner continues by arguing that the Scheduling Order was ambiguous because	8
not apply to “proceedings commenced pursuant to the provisions of the Probate
Code,” Rule 1-041(F)(3), and ultimately relied on Rules 1-016(F) and
1-037(B)(2)(c) in dismissing Petitioner’s claim. We thus do not read the district
court’s decision letters as dismissing Petitioner’s claim under Rule 1-041(E)(1) for
lack of prosecution. We do note that the district court referenced this rule as
persuasive authority in its assessment of the totality of the circumstances, and cited
the fact that this case had “stalled” for “more than three (3) years” in deciding that
dismissal, and not a lesser sanction, was appropriate. As discussed below, we find
no error in the district court’s consideration of this delay in its selection of a sanction
in this case.
7Petitioner does not point to where in the record she preserved the issue that
the Scheduling Order’s purported ambiguity was an impediment to sanctions under
Rule 1-016(F). See Crutchfield v. N.M. Dep’t of Tax’n & Revenue, 2005-NMCA-
022, ¶ 14, 137 N.M. 26, 106 P.3d 1273 (“[O]n appeal, the party must specifically
point out where, in the record, the party invoked the court’s ruling on the issue.
Absent that citation to the record or any obvious preservation, we will not consider
the issue.”); Rule 12-318(A)(4) NMRA (mandating that the brief in chief contain
“an argument which, with respect to each issue presented, shall contain . . . a
statement explaining how the issue was preserved in the court below”). Nor, based
on our review of the record, does it appear this particular issue was presented to the
district court for its consideration. See Rule 12-321(A) NMRA (“To preserve an
issue for review, it must appear that a ruling or decision by the trial court was fairly
invoked.”). Nevertheless, even assuming this issue was properly preserved, we
conclude for the reasons that follow that it presents no basis for reversal.

15
it did not contain the district court’s verbal directive to counsel, made at the July	1
2020 Scheduling Conference, to call the TCAA for a trial setting. Specifically,	2
Petitioner contends that “the written order resulting from the July [2020 S]cheduling	3
[C]onference made no mention of the phone requirement, who was to make the call,	4
when the call must be made or what would happen if the call was not placed.” We	5
are not convinced that any ambiguity in the Scheduling Order precluded sanctions	6
in this case.8
7
{19} As a general proposition, we agree with Petitioner that a party cannot be	8
sanctioned for violating an ambiguous order. Case law in New Mexico already	9
recognizes as much. See, e.g., Newsome, 1985-NMSC-096, ¶ 28 (providing, in the	10
Rule 1-041(B) context, that “[m]isunderstanding a court order may excuse non-	11
compliance if the order is vague or ambiguous”); cf. Marchman v. NCNB Tex. Nat’l	12
Bank, 1995-NMSC-041, ¶ 52, 120 N.M. 74, 898 P.2d 709 (providing that “any	13
clearly articulated order requiring or permitting discovery can provide the basis of	14
sanctions for noncompliance” under Rule 1-037(B)). That an order must be clear and	15
unambiguous is grounded in the requirement that the sanctioned party must have	16
8 Although Petitioner frames her argument that the Scheduling Order was
ambiguous in terms of a substantial evidence challenge, whether an order is
ambiguous and the meaning of a court order are questions of law reviewed de novo.
See Schueller v. Schueller, 1994-NMCA-014, ¶ 7, 117 N.M. 197, 870 P.2d 159
(considering de novo whether a district court decree was ambiguous); Fed. Nat’l
Mortg. Ass’n v. Chiulli, 2018-NMCA-054, ¶ 14, 425 P.3d 739 (“The interpretation
of a court order presents a question of law which we review de novo.”).

16
notice or knowledge of what is expected of them to sustain a sanction. See Carlsbad	1
Hotel Assocs., L.L.C. v. Patterson-UTI Drilling Co., 2009-NMCA-005, ¶ 25, 145	2
N.M. 385, 199 P.3d 288 (providing that a party sanctioned for violating a court order	3
may challenge the sanction on the ground that the order was ambiguous and, as such,	4
deprived the party of “fair or reasonable notice of what conduct was sanctionable”);	5
see also State v. Cherryhomes, 1992-NMCA-111, ¶ 10, 114 N.M. 495, 840 P.2d	6
1261 (providing, in the contempt context, that the reviewing court “must first	7
determine whether an order existed that was sufficient to put [the party] on notice of	8
what was required of [them]”).	9
{20} By the same token, however, it makes little sense to permit a party to seek	10
refuge in an order that arguably is ambiguous on its face where it nonetheless is clear	11
from the record that the party understood its meaning. See Cherryhomes, 1992-	12
NMCA-111, ¶¶ 1, 4, 10, 12, 13, 19 (rejecting the attorney’s argument that an oral	13
order of the court to wear a “tie” was ambiguous because the attorney believed his	14
bandanna was a tie when it was clear from the record that the attorney understood	15
the court interpreted the term to not include a bandanna); Newsome, 1985-NMSC-	16
096, ¶¶ 18-19 (rejecting the appellant’s argument that “he was not required to attend	17
production of documents because the court did not affirmatively order him to do so”	18
when “common sense dictates” that such required attendance is inherent in the	19
court’s order to produce documents). That is, “even an order that [is vague on its	20

17
face] may form the basis of a sanction if the record establishes that, notwithstanding	1
the lack of such clarity, the party sanctioned in fact understood the trial court’s	2
intended meaning.” Millbrook Owners Ass’n, Inc. v. Hamilton Standard, 776 A.2d	3
1115, 1126 (Conn. 2001). Such is the case here.	4
{21} The Scheduling Order provided, “Trial . . . shall be set for the [s]pring of 2021	5
for a date after March 15, 2021. The trial date will not be continued except in truly	6
exceptional circumstances.” The question, then, is how did the district court intend	7
for trial to be set for the spring of 2021? The answer could not be clearer given the	8
district court’s repeated directives at the July 2020 Scheduling Conference, resulting	9
in the Scheduling Order, that counsel needed to call the TCAA to get a trial setting.	10
See Jeantete v. Jeantete, 1990-NMCA-138, ¶ 11, 111 N.M. 417, 806 P.2d 66	11
(providing that “the reviewing court may consider the trial court’s verbal comments	12
in order to clarify or discern the basis for the order or action of the court below”).	13
More importantly, though, neither can it be clearer that Petitioner’s counsel	14
understood the district court’s intention. At the hearing on Petitioner’s motion for	15
reconsideration, counsel for Petitioner repeatedly acknowledged that the district	16
court had directed him to call the TCAA to get a trial setting. As just a few examples,	17
counsel for Petitioner stated the following:	18
I do . . . recognize that the court asked counsel to call the TCAA and	19
get a trial date.	20

18
I . . . simply did not give the instruction to my legal assistant that we	1
needed to call the trial court’s assistant.	2
I do acknowledge that [the instruction for us to contact the trial court	3
assistant for a trial date] was said in [the July 2020 Scheduling	4
Conference].	5
Based on the statements by the court, we were supposed to reach out to	6
the trial assistant in the spring for the trial setting.	7
[T]here have not been any orders that we have violated other than the	8
court’s request that we contact the court’s TCAA for a trial setting.	9
That the “written order resulting from the July [2020 S]cheduling [C]onference	10
made no mention of the phone requirement,” as Petitioner argues, is thus of no	11
import on the issue of ambiguity, given counsel understood his obligation to call the	12
TCAA.9 See Cherryhomes, 1992-NMCA-111, ¶¶ 1, 4, 10, 12, 13, 19; Newsome,	13
1985-NMSC-096, ¶¶ 18-19; see also Millbrook Owners Ass’n, Inc., 776 A.2d at	14
1126.	15
{22} We likewise are not persuaded by Petitioner’s argument that the Scheduling	16
Order was fatally ambiguous because it did not provide “who was to make the call.”	17
Again, counsel for Petitioner repeatedly acknowledged below that he was to make	18
the call. Moreover, contrary to Petitioner’s suggestions, it was Petitioner’s—not	19
Interested Party’s—obligation to expedite the resolution of her claim. See, e.g.,	20
9Although Petitioner’s counsel acknowledges the district court’s directive to
call the TCAA, counsel claimed below and claims on appeal that he forgot this
directive and, as a result, his failure to make the call evinces that he did not act
willfully—a matter we take up below.

19
Pettine v. Rogers, 1958-NMSC-025, ¶ 6, 63 N.M. 457, 321 P.2d 638 (“The duty	1
rests upon the claimant at every stage of the proceeding to use diligence to expedite	2
[their] case.”); Featherstone v. Hanson, 1959-NMSC-040, ¶ 9, 65 N.M. 398, 338	3
P.2d 298 (“There is no duty on the part of the defendant to bring the case to trial,	4
this responsibility being entirely upon the plaintiff, and the plaintiff failed to do so.”),	5
overruled on other grounds by State ex rel. Reynolds v. Molybdenum Corp. of Am.,	6
1972-NMSC-027, ¶¶ 10, 25, 83 N.M. 690, 496 P.2d 1086.	7
{23} Finally, we reject Petitioner’s argument that the Scheduling Order was	8
ambiguous because it did not state by when the TCAA needed to be called, nor what	9
would happen if Petitioner did not make the call. At the July 2020 Scheduling	10
Conference, the district court stated that trial would need to occur in the spring of	11
2021, i.e., approximately nine months later. The Scheduling Order made this	12
mandatory—that “[t]rial . . . shall be set for the [s]pring of 2021 for a date after	13
March 15, 2021.” Petitioner and her counsel hardly needed any more guidance to	14
understand that the TCAA needed to be called sufficiently in advance of spring 2021	15
to get the case calendared within the timeframe mandated in the Scheduling Order.	16
See Newsome, 1985-NMSC-096, ¶¶ 18-19 (explaining that the plaintiff was held	17
accountable for the obvious consequence of the district court’s order—i.e., the	18
plaintiff was required to inspect the records at the date and time provided in the	19
order—even if the order was not explicit in its instruction). Likewise, the Scheduling	20

20
Order clearly set forth the consequences of Petitioner’s inaction—i.e., that trial	1
would not be continued but for “truly exceptional circumstances.”10 That is, if no	2
such circumstances existed and the time for the trial setting passed, the creditor’s	3
claim would not be adjudicated on the merits. See id.	4
{24} For these reasons, Petitioner’s argument that the Scheduling Order could not	5
provide the basis for the district court’s sanction of dismissal because it was	6
ambiguous is not well taken.	7
II. The District Court’s Finding That Petitioner’s Noncompliance Was	8
Willful Is Supported by Substantial Evidence	9
{25} The district court found that Petitioner’s noncompliance was willful such that	10
dismissal with prejudice was warranted. Specifically, the court found, “Here, . . .	11
there is a willful failure to follow the court’s directive to schedule a trial followed	12
by an attempt to blame the court for inaction.”11 On appeal, Petitioner contends the	13
district court’s finding of willfulness is not supported by substantial evidence,	14
arguing that, “at worst,” her attorney exhibited “an excusable neglect and	15
misunderstanding resulting from a lapsed memory and not a willful or intentional	16
10We separately address below Petitioner’s claim that the district court failed
to give her advance warning that it would impose the sanction of dismissal and that
this weighs against such a sanction under the totality of the circumstances.
11The district court made this finding, as well as other pertinent findings, in
its decision letters, which were incorporated into the court’s orders. See Blea v.
Sandoval, 1988-NMCA-036, ¶ 5, 107 N.M. 554, 761 P.2d 432 (construing a district
court’s decision letter as containing “findings of fact and conclusions of law,
although they were not denominated as such”).

21
violation of a trial court order.” See Allred ex rel. Allred v. Bd. of Regents of the	1
Univ. of N.M., 1997-NMCA-070, ¶¶ 24, 28, 123 N.M. 545, 943 P.2d 579 (observing	2
that the district court’s finding of willful noncompliance with a court order is	3
reviewed for substantial evidence). For the reasons that follow, we are not	4
persuaded.	5
{26} First, Petitioner suggests that her or her attorney’s conduct had to rise to the	6
level of “bad faith” or “deceitful or fraudulent conduct,” or entail a “series of	7
violations of orders,” to amount to “willfulness” supporting dismissal. See Gonzales,	8
1995-NMSC-047, ¶ 31 (requiring that the sanction of dismissal for failure to comply	9
with a court order be supported by “willfulness”). Petitioner misapprehends the	10
applicable standard. As our Supreme Court explained, while the type of egregious	11
conduct identified by Petitioner certainly is sufficient to support a sanction of	12
dismissal, see id., it is not necessarily required; instead, “fault of the disobedient	13
party” also suffices, id. (internal quotation marks and citation omitted), as does	14
“gross indifference to [a party’s] obligations,” Medina v. Found. Rsrv. Ins. Co.,	15
1994-NMSC-016, ¶ 6, 117 N.M. 163, 870 P.2d 125. See United Nuclear Corp.,	16
1980-NMSC-094, ¶ 382 (“[W]hether [the] failures to make . . . discovery were the	17
result of a willful, intentional and bad faith attempt to conceal evidence, as the trial	18
court found, or were due to a gross indifference to its discovery obligations, is	19
immaterial. The willfulness required to sustain the severe sanctions of	20

22
[N.M. R. Civ. P.] 37(b)(2)(iii) may be predicated upon either type of behavior.”);	1
Thornfield v. First State Bank of Rio Rancho, 1983-NMCA-149, ¶ 10, 103 N.M. 229,	2
704 P.2d 1105 (providing that “[a]lthough the plaintiff in this case apparently did	3
not act in bad faith as did the defendant in United Nuclear,” the facts of the case	4
nonetheless “indicate a ‘conscious or intentional failure to comply[,]’ which	5
amounts to willfulness under United Nuclear”); see also Allred, 1997-NMCA-070,	6
¶ 27 (observing that “‘willfulness,’ used alone, is shorthand for willfulness, bad faith,	7
or other fault”). In other words, willfulness in this context does not have to rise to	8
the level of bad faith or other wrongdoing but instead is a “conscious or intentional	9
failure to comply” “even where there is ‘no wrongful intent.’” Gonzales, 1995-	10
NMSC-047, ¶ 31; see Lowery, 1992-NMSC-001, ¶¶ 13-15 (providing that, under	11
Rule 1-041(B), where the plaintiff “was aware of the trial date and failed to prepare	12
for trial,” the plaintiff’s “conduct was willful” and separately examining, under the	13
totality of the circumstances, whether there was a reasonable explanation for this	14
willful violation). In contrast, “accidental or involuntary non-compliance” does not	15
amount to “willfulness.” See Gonzales, 1995-NMSC-047, ¶ 31 (internal quotation	16
marks and citation omitted). Additionally, and contrary to Petitioner’s contentions,	17
repeated or serial violations of court orders are not necessary to sustain a sanction of	18
dismissal. See Beverly v. Conquistadores, Inc., 1975-NMCA-070, ¶ 15, 88 N.M.	19
119, 537 P.2d 1015 (“The fact that persistent misconduct provides the basis for	20

23
dismissal does not mean that one instance of misconduct may not be sufficiently	1
extreme to warrant dismissal.”); cf. State v. Le Mier, 2017-NMSC-017, ¶ 24, 394	2
P.3d 959 (providing that “a single violation of a discovery order may suffice to	3
support a finding of culpability” in the context of excluding the state’s essential	4
witnesses in a criminal prosecution).	5
{27} Second, Petitioner does not advance a substantial evidence challenge in line	6
with the mandates of our standard of review. Contrary to our substantial evidence	7
standard, Petitioner does not “marshal all of the evidence in support of” the district	8
court’s willfulness finding and “then demonstrate that even if the evidence is viewed	9
in a light most favorable to the decision reached below, together with all reasonable	10
inferences attendant thereto, the evidence is insufficient to support the finding[].”	11
See Maloof v. San Juan Cnty. Valuation Protests Bd., 1992-NMCA-127, ¶ 18, 114	12
N.M. 755, 845 P.2d 849; see also Rule 12-318(A)(3) NMRA (providing that “[a]	13
contention that a verdict, judgment, or finding of fact is not supported by substantial	14
evidence shall be deemed waived unless the summary of proceedings includes the	15
substance of the evidence bearing on the proposition”); Rule 12-318(A)(4)	16
(requiring a “specific attack on any finding, or the finding shall be deemed	17
conclusive”); Martinez v. Sw. Landfills, Inc., 1993-NMCA-020, ¶ 18, 115 N.M. 181,	18
848 P.2d 1108 (providing that “an appellant is bound by the findings of fact made	19
below unless the appellant properly attacks the findings”). Instead, Petitioner	20

24
complains repeatedly that the district court did not credit her counsel’s explanation	1
for failing to obtain a trial setting—that he forgot to call the TCAA.12 The district	2
court, however, was under no obligation to accept this explanation. See Griffin v.	3
Guadalupe Med. Ctr., Inc., 1997-NMCA-012, ¶ 22, 123 N.M. 60, 933 P.2d 859	4
(“When the trial court’s findings of fact are supported by substantial evidence, . . .	5
refusal to make contrary findings is not error.”); Lerma v. Romero, 1974-NMSC-	6
089, ¶ 2, 87 N.M. 3, 528 P.2d 647 (holding that, where the appellants argued the	7
district court erred in refusing requested findings but did not directly attack the	8
district court’s findings, the findings would not be reviewed on appeal); see also	9
N.M. Tax’n & Revenue Dep’t v. Casias Trucking, 2014-NMCA-099, ¶ 20, 336 P.3d	10
436 (“The question is not whether substantial evidence exists to support the opposite	11
result, but rather whether such evidence supports the result reached.” (internal	12
quotation marks and citation omitted)); Sanchez v. Saylor, 2000-NMCA-099, ¶ 12,	13
129 N.M. 742, 13 P.3d 960 (“There may be other facts that, if believed, might	14
12On appeal, although counsel for Petitioner continues to maintain that he
forgot the district court’s directives to call the TCAA for a trial setting, he also
suggests he may have purposely waited until August 2021 to file the request for trial
setting because “COVID-19 had played havoc with trial court scheduling.” Based
on our review of the record, Petitioner has never before cited COVID-19 as a reason
why her attorney did not timely attempt to obtain a trial setting. See Muse, 2009-
NMCA-003, ¶ 51; Crutchfield, 2005-NMCA-022, ¶ 14. Moreover, as we discuss
below, the district court was tasked with assessing the credibility of Petitioner’s
explanations. Counsel’s ever-evolving explanations for his failure to follow the
district court’s directive to call the TCAA to obtain a trial setting, even on appeal,
do little to make us question the district court in this regard.

25
support a different result, but we disregard them.”). Further, the district court’s	1
decision not to accept counsel’s explanation is a finding against Petitioner on this	2
matter. See In re Yalkut, 2008-NMSC-009, ¶ 18, 143 N.M. 387, 176 P.3d 1119	3
(“[F]ailure to make a finding of fact is regarded as a finding against the party seeking	4
to establish the affirmative.”). Thus, the question before us is not whether substantial	5
evidence supports Petitioner’s claim that her attorney forgot the district court’s	6
directive, but instead whether substantial evidence supports the district court’s	7
finding that there was “a willful failure to follow the court’s directive to schedule a	8
trial.”	9
{28} Viewing the record in the light most favorable to the district court, as we must,	10
we conclude that it does. As the district court explained in its Second Decision	11
Letter, at the July 2020 Scheduling Conference, the judge “directed counsel three	12
(3) times to contact [his TCAA] for a trial date.” This, the district court observed,	13
was not the first time such a directive had been given—at the December 13, 2016,	14
scheduling conference, the judge also directed counsel to obtain a trial date from his	15
assistant.13 Counsel’s inaction in the face of these repeated directives supports the	16
13 Petitioner seems to contend that the directive from 2016 should not be
considered. First, Petitioner notes the case was being handled by an associate
attorney in 2016 and that the attorney resisting dismissal in 2021 and 2022 “was
aware of the scheduling order that was entered [in 2016] but was not aware of any
conversations concerning the trial scheduling.” The district court, however, rejected
this explanation for noncompliance, and Petitioner advances no argument why this
was error. See, e.g., Hall, 2023-NMCA-042, ¶ 5; Premier Tr. of Nev., Inc., 2021-

26
district court’s finding of willfulness. See Thornfield, 1983-NMCA-149, ¶¶ 10, 17	1
(concluding that the plaintiff’s acknowledgement that he had not responded to the	2
request for production, despite a court order to do so, “indicate[s] a ‘conscious or	3
intentional failure to comply’ which amounts to willfulness under United Nuclear,”	4
even though the plaintiff “did not act in bad faith” and notwithstanding counsel’s	5
explanation that he “wanted to cooperate but was having trouble assembling	6
documents because of his move to Texas and his pending divorce”); Lowery, 1992-	7
NMSC-001, ¶¶ 13-15 (providing that where the plaintiff “was aware of the trial date	8
and failed to prepare for trial,” the plaintiff’s “conduct was willful”); see also Rabb	9
v. Amatex Corp., 769 F.2d 996, 1000 (4th Cir. 1985) (providing that in context of a	10
dismissal under Fed. R. Civ. P. 16 and Fed. R. Civ. P. 37(b)(2)(C), the “failure to	11
comply where counsel clearly should have understood his duty to the court	12
constituted professional negligence of a degree amounting to fault” (internal	13
NMCA-004, ¶ 10. Second, Petitioner contends the directive from 2016 was not
previously cited by Interested Party or the district court. Petitioner, however, does
not explain why the district court’s reliance on this directive was erroneous and
ignores the established principle that the court may rely on the record in the case
before it. See Baca v. Catron, 1917-NMSC-074, ¶¶ 13, 15, 24 N.M. 242, 173 P. 862
(citing the “well established” rule that “the trial court will take judicial notice of all
of the record in a case before it”). Finally, Petitioner suggests that the district court’s
determination on November 20, 2019, that Petitioner was not in violation of the
original scheduling order, somehow precludes reliance on the 2016 directive. Given
the interlocutory nature of the court’s November 2019 ruling, we are not convinced.
See Sims v. Sims, 1996-NMSC-078, ¶ 59, 122 N.M. 618, 930 P.2d 153 (providing
that “[d]istrict courts have plenary power over their interlocutory orders,” which
“may be revised at any time prior to final judgment”).

27
quotation marks and citation omitted)). We stress that the violation here was not	1
simply a missed deadline. Instead, pursuant to the Scheduling Order, trial was to	2
occur on Petitioner’s creditor’s claim in the spring of 2021. Petitioner’s disregard of	3
the district court’s directive on how to make that happen resulted in the trial setting	4
being missed and the proceedings essentially coming to a halt. See Bay Corrugated	5
Container, Inc. v. Gould, Inc., 609 F. App’x 832, 835 (6th Cir. 2015) (providing, in	6
the Fed. R. Civ. P. 41(b) context, that “a plaintiff’s delay in prosecuting a claim	7
evinces willfulness, bad faith, or fault if it displays a reckless disregard for the effect	8
of the plaintiff’s conduct on the district court proceedings” (text only) (citation	9
omitted)).	10
{29} Beyond this, Petitioner’s counsel’s shifting explanations for why Petitioner	11
never obtained a trial setting provides additional support for the district court’s	12
finding of willfulness. We explain. Petitioner claimed in her Initial Response to	13
Interested Party’s Motion to Dismiss that the district court affirmatively stated at the	14
July 2020 Scheduling Conference that it would sua sponte set the trial—a statement	15
the district court judge later found was “false.” At the status conference held on	16
October 13, 2021, counsel for Petitioner acknowledged that the district court judge	17
had in fact told him to contact the TCAA. Counsel did so, however, only after the	18
judge expressed skepticism that he would have said he was going to set the trial date	19
himself and stated he would review the recording of the hearing. The next day,	20

28
Petitioner filed her Substituted Response in which counsel acknowledged the court’s	1
directive, but again claimed that counsel “was under the impression that the [c]ourt	2
would set the matter” based on the language of the Scheduling Order, which,	3
Petitioner incorrectly asserted, “stated that the [c]ourt shall set the matter for trial.”14
4
{30} Based on this chronology, the district court found in its First Decision Letter	5
that Petitioner’s argument that “the [c]ourt is the cause of delay due to failure to	6
schedule the matter for trial is quite disingenuous and arguably dishonest since	7
counsel was specifically instructed on the record to select a date for trial and failed	8
to do so.” Nowhere in Petitioner’s briefing does she directly challenge this finding	9
or the related finding, cited above, regarding a “false” statement in Petitioner’s Initial	10
Response to Interested Party’s Motion to Dismiss. As a result, such findings are	11
binding on appeal. See Lerma, 1974-NMSC-089, ¶ 2; Martinez, 1993-NMCA-020,	12
¶ 18. Moreover, we leave such credibility determinations to the trial courts. See Reed	13
v. Furr’s Supermarkets, Inc., 2000-NMCA-091, ¶ 23, 129 N.M. 639, 11 P.3d 603	14
(providing that the district court can evaluate credibility at motions hearings); cf.	15
Sanchez, 2000-NMCA-099, ¶ 12 (“It is for the trial court to weigh the testimony,	16
determine the credibility of witnesses, reconcile inconsistent statements, and	17
14Petitioner’s initial insistence that the district court would sua sponte set the
trial date is not only in conflict with the district court’s directives, but also, as
Interested Party notes, appears contrary to a local rule in the Ninth Judicial District
Court, providing that all “[r]equests for settings for trial . . . shall be directed to the
calendar clerk who will make the setting.” LR9-115(A) NMRA.

29
determine where the truth lies. The appellate court may not reweigh the evidence or	1
substitute its judgment for that of the trier of fact.” (text only) (citations omitted)).	2
{31} Only after the district court expressed disbelief about Petitioner’s explanations	3
in its First Decision Letter did Petitioner finally assert that her counsel had	4
inadvertently forgotten the court’s directive. Specifically, in her motion for	5
reconsideration, Petitioner claimed that her counsel “simply forgot” that the district	6
court told him to contact the TCAA. Then, at the hearing held on Petitioner’s motion	7
for reconsideration, counsel repeatedly suggested that his lack of memory was due	8
to the lapse in time between the July 2020 Scheduling Conference and the spring of	9
2021. As just two examples, Petitioner’s counsel stated early in the hearing: “I do	10
. . . recognize that the court asked counsel to call the TCAA and get a trial date. . . .	11
But when the spring came around, Your Honor, I just completely forgot.” Similarly,	12
counsel later stated, “Based on the statements by the court, we were supposed to	13
reach out to the trial assistant in the spring for the trial setting. When we didn’t get	14
it, because I had forgotten that that even occurred, when we didn’t get the trial	15
setting, we independently filed another request in August.”15 Counsel’s explanation,	16
15On appeal, Petitioner suggests counsel’s filing of the request for trial setting
in August 2021 somehow rebuts a showing of willfulness, arguing it was done in
“good faith” and in compliance with Rule 1-040(B) NMRA. See id. (providing that
“[u]nless a pretrial scheduling order is entered, any party may submit a request for
trial on the merits”). We are not persuaded that this request for trial setting negates
the district court’s willfulness finding. As an initial matter, this request was made
long after trial was supposed to be held, pursuant to the Scheduling Order, and

30
however, fails to account for the fact that the district court ordered that trial was to	1
happen in the spring of 2021. To ensure that trial occurred in the spring of 2021,	2
counsel needed to call the TCAA well before that time. The issue thus is not whether	3
Petitioner’s counsel remembered in the spring of 2021 what the district court ordered	4
at the July 2020 Scheduling Conference, but why counsel did not quickly follow up	5
after that conference to get the trial scheduled for the spring of 2021.	6
{32} Simply put, Petitioner never, from the outset or otherwise, straightforwardly	7
explained to the district court why counsel failed to heed the district court’s repeated	8
directives to call the TCAA to get the trial set for the spring of 2021. While we,	9
ourselves, make no determination as to Petitioner’s evolving but ultimately	10
incomplete explanations, we perceive no error in the district court’s finding that	11
Petitioner acted with “a willful failure to follow the court’s directive to schedule a	12
trial.” See Reed, 2000-NMCA-091, ¶¶ 32-33 (upholding the dismissal of the	13
plaintiff’s case and rejecting the plaintiff’s assertion that “the presence of her	14
explanations prevents a finding that she misrepresented information during	15
contrary to the district court’s directive about how to obtain a trial setting. Cf. Stoll
v. Dow, 1986-NMCA-134, ¶ 12, 105 N.M. 316, 731 P.2d 1360 (“[The p]laintiff may
not, as he attempts to do here, shift the burden of bringing a case to trial to the court
if it becomes obvious that his request for a trial setting is unavailing.”). Further, it
appears the request was not actually in compliance with Rule 1-040(B)—which on
its face does not apply to cases where, as here, a scheduling order was entered—or,
as previously noted, in compliance with LR9-115(A)—which provides that all
“[r]equests for settings for trial . . . shall be directed to the calendar clerk who will
make the setting.”

31
discovery” because she “failed to persuade the district court” with these	1
explanations); see also Weiss, 2013-NMCA-054, ¶¶ 14, 19 (concluding that	2
“substantial evidence existed below for the district court to impose sanctions on [the	3
d]efendants for their discovery violations and misrepresentations to the court” where	4
the district court found, among other things, that “[the d]efendants’ counsel	5
‘misrepresented several pertinent facts’ during [a] hearing, characterizing the	6
attorney’s statements as ‘careless and sloppy at best and intentional[ly] unethical at	7
worst’”).	8
III. The Totality of the Circumstances Supports the Sanction of Dismissal	9
{33} Lastly, Petitioner argues that the totality of the circumstances does not warrant	10
the sanction of dismissal. Specifically, Petitioner argues that (1) Interested Party	11
suffered no actual prejudice, (2) Petitioner did not interfere with the judicial process,	12
(3) Petitioner was not personally culpable, (4) the district court gave no advance	13
warning before dismissal, and (5) the district court made no effort to impose lesser	14
sanctions. In support, Petitioner cites federal case law involving sanctions for	15
discovery violations. See Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992)	16
(listing five nonexclusive factors for federal district courts to consider when	17
imposing sanctions pursuant to Fed. R. Civ. P. 37(b)(2)(C)).16 There, however, is	18
16Based on our research, Ehrenhaus has never been cited by New Mexico
appellate courts.

32
New Mexico case law already on point—setting out factors trial courts must balance	1
in imposing sanctions—that differs somewhat from the federal authority relied on	2
by Petitioner. Compare Ehrenhaus, 965 F.2d at 921, with Enriquez, 1998-NMCA-	3
157, ¶ 48 (providing in the context of Rule 1-037 sanctions, that “the trial court must	4
balance the nature of the offense, the potential prejudice to the parties, the	5
effectiveness of the sanction, and the imperative that the integrity of the court’s	6
orders and the judicial process must be protected”); and Lewis, 2001-NMSC-035,	7
¶ 23 (same). Petitioner has not argued why we ought not apply on-point New Mexico	8
case law and instead adopt the federal standard. We therefore decline to do so. See	9
Elane Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 (“We will	10
not . . . guess at what a party’s arguments might be.” (text only) (citation omitted)).	11
We proceed with considering Petitioner’s arguments with respect to the totality of	12
the circumstances to the extent they overlap with established New Mexico precedent.	13
{34} First, Petitioner asserts that Interested Party suffered “no actual prejudice.” As	14
an initial matter, we observe that under New Mexico law, “the party seeking	15
dismissal is not required to show prejudice as a precondition to dismissal, . . .	16
[n]onetheless, prejudice may be a factor for the district court to consider when	17
evaluating the propriety of dismissal for discovery abuse.” Reed, 2000-NMCA-091,	18
¶ 28; see also Sanchez, 2004-NMCA-033, ¶ 19 (“Contrary to counsel’s arguments,	19
whether prejudice to [the d]efendant resulted is not the issue; the issue is counsel’s	20

33
abuse of the discovery process.”). Nevertheless, the district court found in its Second	1
Decision Letter that Interested Party indeed was prejudiced because she had “been	2
held in a ‘legal limbo’” and deprived of any benefit of the Estate for several years	3
due to Petitioner’s failure to bring her creditor’s claim to trial. On appeal, Petitioner	4
asserts this was error because, according to her, the Estate was not subject to final	5
distribution since “much of the Estate funds were tied up in numerous investment	6
vehicles that had yet to mature.” Petitioner misconstrues the record. At the hearing	7
relied on by Petitioner for this point, counsel for Petitioner, acting in her capacity as	8
the personal representative, told the district court that the personal representative had	9
liquidated all of the Estate assets except for a number of savings bonds that had not	10
yet matured. Counsel for the personal representative then told the district court, “As	11
soon as the creditor’s claim is resolved, the Estate is subject to distribution other	12
than . . . wanting to hold on to these bonds until maturity.” Counsel specifically told	13
the district court that there could be a “partial distribution” of the Estate if the	14
Petitioner’s creditor’s claim was resolved before the bonds matured. We accordingly	15
reject Petitioner’s argument that Interested Party suffered “absolutely no prejudice”	16
from the lengthy delay in resolving Petitioner’s creditor’s claim that prevented	17
distribution of the Estate. See D’Antonio v. Garcia, 2008-NMCA-139, ¶ 17, 145	18
N.M. 95, 194 P.3d 126 (“We stress, however, that when a party willfully fails to	19
comply with a court order, dismissal may be appropriate. Under such circumstances,	20

34
we have stated that a dismissal serves to protect a diligent party from continual delay	1
and uncertainty as to [their] rights.” (alteration, internal quotation marks, and	2
citations omitted)); McNeal v. Papasan, 842 F.2d 787, 790 (5th Cir. 1988) (cited	3
favorably by Lowery, 1992-NMSC-001, ¶ 12, providing that “the defendant’s actual	4
prejudice because of the delay” may serve as an “aggravating factor” justifying the	5
sanction of dismissal under the federal equivalent to Rule 1-041(B)).	6
{35} Turning to the second and third considerations cited by Petitioner, the district	7
court determined the following:	8
Petitioner[’s] counsel’s argument that no “interference with the judicial	9
process” exists aside from failure to follow the July 29, 2020 verbal	10
orders of the court is inaccurate. Petitioner[’s] attorneys also failed to	11
follow the court’s verbal order of December 13, 2016 to contact my	12
[TCAA] to set this matter for trial. Now, [five and a half] years after	13
the December 13, 2016 order, still no one has contacted my [TCAA] to	14
schedule the trial. Again, at this juncture, I believe this factor weighs in	15
favor of dismissal.	16
With regards to the “culpability of the litigant,” while Petitioner[ herself	17
is] not at fault, Petitioner[’s] attorneys failed to set this matter for trial.	18
Accordingly, this factor weighs in favor of dismissal, although it is not	19
given as much weight due to Petitioner[’s] lack of personal blame.17
20
17It is not entirely clear the extent to which the lack of personal culpability on
the part of the sanctioned party comes into play under the totality of the
circumstances in New Mexico. Petitioner cites Lowery, 1992-NMSC-001, a Rule
1-041(B) case, which lists three “aggravating factors,” borrowed from McNeal, 842
F.2d 787, to consider when determining whether a litigant’s conduct is “extreme”
such that dismissal under Rule 1-041(B) is warranted. See Lowery, 1992-NMSC-
001, ¶ 11. McNeal in turn sets out the following standard:

35
[B]ecause of our reluctance to visit such a harsh sanction upon a party
solely because of the sins of [their] counsel, in close cases we have
often looked for proof of one of the following “aggravating factors”—
(1) the plaintiff’s personal contribution to the delay, (2) the defendant’s
actual prejudice because of the delay, and (3) delay that can be
characterized as intentional.
842 F.2d at 790. Viewed within the lens of McNeal, a party’s lack of personal
culpability does not necessarily make the sanction of dismissal improper; instead, it
appears the existence of such culpability (or one of the other McNeal aggravating
factors, including actual prejudice, which the district court found here) could justify
dismissal. See id. Moreover, to the extent Lowery could be read to hold that a party’s
lack of personal culpability could avoid the sanction of dismissal when other factors
and considerations weigh in favor of the sanction, this appears contrary to
subsequent New Mexico authority. See, e.g., Allred, 1997-NMCA-070, ¶ 33
(rejecting the argument that the sanction of dismissal against “the real party in
interest who was not directly involved in the actions of [the p]laintiffs . . . , would
be unjust” because such argument “would require this Court to determine that a
client is not bound by the actions of [their] attorney”); Padilla v. Est. of Griego,
1992-NMCA-021, ¶ 17, 113 N.M. 660, 830 P.2d 1348 (“‘There is certainly no merit
to the contention that dismissal of [the] petitioner’s claim because of his counsel’s
unexcused conduct imposes an unjust penalty on the client. [The p]etitioner
voluntarily chose this attorney as his representative in the action, and he cannot now
avoid the consequences of the acts or omissions of this freely selected agent. Any
other notion would be wholly inconsistent with our system of representative
litigation, in which each party is deemed bound by the acts of [their] lawyer-agent
and is considered to have notice of all facts, notice of which can be charged upon
the attorney.’” (quoting Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 (1962)
(internal quotation marks and citation omitted))); id. (“‘[K]eeping this suit alive
merely because [defendant] should not be penalized for the omissions of his own
attorney would be visiting the sins of [defendant’s] lawyer upon the [plaintiff].’”
(alterations in original) (quoting Link, 370 U.S. at 634 n.10)); cf. Marchman, 1995-
NMSC-041, ¶ 56 (providing in the context of Rule 1-037(B) monetary sanctions that
“[t]he clients are principals, the attorney is an agent, and under the law of agency the
principal is bound by [their] chosen agent’s deeds” and that “[a] principal thus is
liable for the wrongful acts of [their] subagent committed within the scope of the
agency relationship”).

36
Instead of explaining why the foregoing is not supported by substantial evidence or	1
is otherwise erroneous, Petitioner simply rehashes the exact same arguments she	2
made to the district court that the court rejected. Such an approach on appeal does	3
not persuade us that the district court erred. See, e.g., Hall, 2023-NMCA-042, ¶ 5;	4
Premier Tr. of Nev., Inc., 2021-NMCA-004, ¶ 10.	5
{36} Fourth, Petitioner contends that the district court was required to provide	6
“advance warning of dismissal” that her “claim would be dismissed if the TCAA	7
was not contacted” and that no such warning was given. Petitioner cites no	8
persuasive New Mexico authority that advance warning is required prior to entry of	9
the sanction of dismissal. And we have authority to the contrary. See, e.g.,	10
Thornfield, 1983-NMCA-149, ¶ 18 (“Nothing on the face of Rule 37 requires notice	11
before imposition of sanctions. The fact that the sanctions are spelled out in the rule	12
provides ample notice.”); Beverly, 1975-NMCA-070, ¶ 7 (recognizing a trial court’s	13
authority to sua sponte dismiss a complaint “for failure to comply with orders of the	14
court”). Regardless, Petitioner had notice that dismissal might be possible. As	15
already discussed, the Scheduling Order plainly set out the consequences of	16
Petitioner’s inaction—i.e., that trial would not be continued but for “truly	17
exceptional circumstances.” Furthermore, this was not a sua sponte dismissal—i.e.,	18

37
the sanction of dismissal in this case was occasioned by Interested Party’s Motion	1
to Dismiss.18
2
{37} Finally, Petitioner argues that the district court erred because it made “no	3
effort to impose lesser sanctions.” Contrary to Petitioner’s suggestion, however,	4
“[t]rial courts are not required to exhaust lesser sanctions before acting.” Enriquez,	5
1998-NMCA-157, ¶ 48; see also Medina, 1994-NMSC-016, ¶ 7 (“The district court	6
is not required to impose lesser sanctions before it imposes the sanction of	7
dismissal.”). Instead, the district court need only “reasonably explore[]” “meaningful	8
alternatives” before imposing the sanction of dismissal. See Gonzales, 1995-NMSC-	9
047, ¶ 33; Newsome, 1985-NMSC-096, ¶ 29 (same). The district court did so here.	10
The court considered whether lesser sanctions, “such as awarding attorney’s fees,”	11
would be appropriate but determined they were not since the case essentially had	12
been dormant for three years. Petitioner contends the district court’s finding of	13
dormancy is not supported by substantial evidence because her counsel filed requests	14
for trial settings in October 2019 and August 2021 and there was a scheduling	15
18To the extent Petitioner asserts that she was denied due process, i.e., notice
and the opportunity to be heard, such argument is not well taken. Again, Petitioner
received notice of the possibility of dismissal through Interested Party’s Motion to
Dismiss, and she was given the opportunity to be heard both in her written filings
with the district court and at hearings before the court. See, e.g., Lowery, 1992-
NMSC-001, ¶ 8 (providing that the plaintiff “was not denied her right to due process
by the trial court’s dismissal of her action” where she received notice and a hearing
prior to dismissal with prejudice).

38
conference held in July 2020. However, these requests for trial settings were made	1
contrary to the district court’s directive on how to obtain a trial setting, and the	2
referenced scheduling conference resulted in the Scheduling Order that Petitioner	3
ultimately violated by failing to obtain a trial setting as directed. In light of this, we	4
do not fault the district court in finding the case “essentially dormant” during this	5
period or in considering this delay when selecting a sanction under the totality of the	6
circumstances.19 See D’Antonio, 2008-NMCA-139, ¶ 17; McNeal, 842 F.2d at 790.	7
Lastly, Petitioner does not identify any particular alternative sanction it contends the	8
district court ought to have considered. Given all this, we conclude the district court	9
“reasonably explored” meaningful alternative sanctions and did not abuse its	10
19Petitioner further contends that Interested Party could not relitigate, and the
district court could not revisit, whether there was significant activity on Petitioner’s
creditor’s claim before 2019 in light of the district court’s ruling on November 20,
2019, denying Interested Party’s original motion to dismiss Petitioner’s claim for
lack of prosecution. In support of the preclusive effect of the district court’s
November 2019 ruling, Petitioner cites the doctrines of issue preclusion and law of
the case. By definition, issue preclusion, or collateral estoppel, has no applicability
here because it is “designed to bar relitigation of ultimate facts or issues actually and
necessarily decided in a prior suit in which the decision is final.” Reeves v.
Wimberly, 1988-NMCA-038, ¶ 8, 107 N.M. 231, 755 P.2d 75 (emphasis added).
“[T]he law of the case doctrine is flexible and discretionary, . . . [and] allows—but
does not require—courts to refuse to consider matters already decided in the case.”
Kucel v. N.M. Med. Rev. Comm’n, 2000-NMCA-026, ¶ 17, 128 N.M. 691, 997 P.2d
823 (emphasis added). Further, “[t]he law of the case generally applies to questions
of law, not ‘purely fact’ questions.” State ex rel. King v. UU Bar Ranch Ltd. P’ship,
2009-NMSC-010, ¶ 21, 145 N.M. 769, 205 P.3d 816. Thus, the law of the case
doctrine did not serve to restrict the district court’s ability to revisit the factual
findings underlying its November 2019 ruling. See Sims, 1996-NMSC-078, ¶ 59.

39
discretion in determining lesser sanctions were not adequate in this case. See	1
Gonzales, 1995-NMSC-047, ¶ 33; Newsome, 1985-NMSC-096, ¶ 29.	2
{38} In light of the totality of the circumstances facing the district court, including	3
the court’s unimpeached determination that Petitioner acted willfully, the fact that	4
the creditor’s claim was pending for almost six years without resolution, as well as	5
the prejudice to Interested Party in having distribution of the Estate delayed even	6
further, we cannot say the district court’s selection of the sanction of dismissal was	7
“a clear error of judgment.” See Sandoval, 1989-NMCA-042, ¶ 23; see also Link v.	8
Wabash R.R. Co., 370 U.S. 626, 627-28, 633-35 (1962) (affirming the district court’s	9
sua sponte dismissal of the complaint where plaintiff’s counsel failed to appear at	10
the pretrial conference without adequate explanation and the case had been pending	11
for six years and had languished for more than three years prior to dismissal).	12
CONCLUSION	13
{39} For the foregoing reasons, we affirm the district court’s dismissal of	14
Petitioner’s creditor’s claim.	15
{40} IT IS SO ORDERED.	16
___________________________	17
JENNIFER L. ATTREP, Judge	18

1
WE CONCUR:
2 3 4 5
JANE B. YOHALEM, Judge
Laval E Boca
GERALD E. BACA, Judge
40