January 7, 2020- Raul A. Cano. C. v. Keith Legoza, No. A-1-CA-37925

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
RAUL A. CANO. C.,	1
Plaintiff-Appellant/Cross-Appellee,	2
v. 	No. A-1-CA-37925	3
KEITH LEGOZA,	4
Defendant-Appellee/Cross-Appellant.	5
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	6
Denise Barela Shepherd, District Judge	7
Raul A. Cano. C.	8
Albuquerque, NM	9
Pro Se Appellant/Cross-Appellee	10
Walsh, Gallegos, Treviño, Russo & Kyle P.C.	11
Barry J. Berenberg	12
Rodney L. Gabaldón	13
Albuquerque, NM	14
for Appellee/Cross-Appellant	15
MEMORANDUM OPINION	16
VARGAS, Judge.	17
{1} 	Plaintiff appeals from the district court’s order of dismissal. In this Court’s	18
notice of proposed disposition, we proposed to summarily affirm. We also proposed	19
to dismiss Defendant’s cross-appeal, on the basis that Defendant failed to file a	20
docketing statement as required by the Rules of Appellate Procedure. Plaintiff filed	21
a “memorandum from plaintiff,” which we have duly considered. Defendant did not	22
file a response and the time for doing so has expired. Remaining unpersuaded by	23
Court of Appeals of New Mexico
Filed 1/7/2020 9:25 AM

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Plaintiff’s arguments, and given that Defendant has not opposed our proposed	1
dismissal of his cross-appeal, we affirm the order of the district court in the direct	2
appeal and dismiss the cross-appeal.	3
{2} 	In our calendar notice, we proposed to affirm the order of the district court,	4
because we could not discern from Plaintiff’s docketing statement the relief sought	5
and grounds therefor. [CN 1, 3] In his memorandum in opposition, Plaintiff provides	6
additional background information concerning his dispute with Defendant, but fails	7
to alert this Court to the ways in which he believes the district court erred. [MIO	8
PDF 1] We employ a presumption of correctness in the rulings of the district court,	9
and the burden is on the appellant to clearly demonstrate error. See Farmers, Inc. v.	10
Dal Mach. & Fabricating, Inc., 1990-NMSC-100, ¶ 8, 111 N.M. 6, 800 P.2d 1063.	11
Here, Plaintiff has not demonstrated that the district court erred. Moreover, Plaintiff	12
has not otherwise asserted any facts, law, or argument in his memorandum in	13
opposition that persuade this Court that our notice of proposed disposition was	14
erroneous. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955	15
P.2d 683 (“Our courts have repeatedly held that, in summary calendar cases, the	16
burden is on the party opposing the proposed disposition to clearly point out errors	17
in fact or law.”).	18
{3} 	We also proposed in our calendar notice to dismiss Defendant’s cross-appeal	19
for failure to comply with Rule 12-208(G) NMRA. [CN 1, 3] See Rule 12-312(A),	20
(D) NMRA (stating that failure to comply with court rules may result in sanctions,	21

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including dismissal, and that failure to file a docketing statement may be deemed	1
sufficient grounds for dismissal of an appeal). Defendant has not responded to our	2
proposed disposition. “Failure to file a memorandum in opposition constitutes	3
acceptance of the disposition proposed in the calendar notice.” Frick v. Veazey,	4
1993-NMCA-119, ¶ 2, 116 N.M. 246, 861 P.2d 287.	5
{4} 	Accordingly, for the reasons stated in our notice of proposed disposition and	6
herein, we affirm the district court’s order. In addition, we dismiss Defendant’s	7
cross-appeal.	8
{5} 	IT IS SO ORDERED.	9
_________________________________	10
JULIE J. VARGAS, Judge	11
WE CONCUR:	12
_________________________________	13
LINDA M. VANZI, Judge	14
_________________________________	15
MEGAN P. DUFFY, Judge	16