A-1-CA-37882•September 16, 2019- Board of Education v. Heidi Walker, No. A-1-CA-37882
September 16, 2019- Board of Education v. Heidi Walker, No. A-1-CA-37882
A-1-CA-37882Nmctapp
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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1
BOARD OF EDUCATION OF 2
THE JEMEZ MOUNTAIN SCHOOL 3
DISTRICT, 4
Plaintiff-Appellee, 5
v. No. A-1-CA-37882 6
HEIDI WALKER, 7
Defendant-Appellant. 8
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 9
Francis J. Mathew, District Judge 10
German Burnett & Associates, LLC 11
Kari E. Cole 12
Jason M. Burnette 13
Albuquerque, NM 14
for Appellee 15
Law Offices of Michael E. Mozes, PC 16
Michael E. Mozes 17
Albuquerque, NM 18
for Appellant 19
MEMORANDUM OPINION 20
VARGAS, Judge. 21
{1} Defendant appeals from the district court’s order enforcing a settlement 22
agreement between the parties. In this Court’s notice of proposed disposition, we 23
proposed to summarily affirm. Defendant filed a memorandum in opposition and 24
Court of Appeals of New Mexico
Filed 9/16/2019 8:49 AM2
Plaintiff filed a memorandum in support, both of which we have duly considered. 1
Remaining unpersuaded by Defendant’s arguments, we affirm. 2
{2} In our calendar notice, we proposed to conclude the district court did not err 3
in determining the parties had entered into a settlement agreement on September 28, 4
2017, and in finding that Defendant authorized her attorney to agree to the terms on 5
her behalf. [CN 4-5] Defendant’s memorandum in opposition does not respond to 6
our proposed conclusion regarding her attorney’s authority and we thus consider 7
Defendant to have abandoned that issue. State v. Johnson, 1988-NMCA-029, ¶ 8, 8
107 N.M. 356, 758 P.2d 306 (stating that when a case is decided on the summary 9
calendar, an issue is deemed abandoned when a party fails to respond to the proposed 10
disposition of that issue). 11
{3} In her memorandum in opposition, Defendant argues the parties failed to 12
reach agreement on a term regarding Defendant’s ability to present evidence to the 13
Public Education Department (PED). [MIO 7-11] However, there is clear evidence 14
in the record that both parties agreed, on September 28, 2017, that nothing would 15
limit Defendant’s ability to present evidence to the PED. [CN 3; RP 57-58, 151] As 16
we stated in our calendar notice, neither the terms agreed upon by the parties on 17
September 28, 2017, nor the version of the settlement agreement that the district 18
court determined reflects the agreement of the parties limits Defendant’s ability to 19
present evidence to the PED. [CN 3] Defendant claims Plaintiff’s attempts to narrow 203
the scope of this term by proposing limiting language in draft settlement agreements 1
showed a lack of mutual assent and served to revoke Plaintiff’s initial acceptance of 2
the term. [MIO 8-11] However, the evidence shows that throughout the course of 3
drafting discussions regarding precise language, Plaintiff continued to recognize its 4
prior agreement that Defendant would not be limited from presenting evidence to 5
the PED. [RP 110, 121 (explaining that Plaintiff’s position is that nothing in the 6
language limits Defendant’s ability to respond to any PED process), 123 (expressing 7
Plaintiff’s intention that Defendant be able to make a full throated defense with PED 8
if needed)] See Jones v. Schoellkopf, 2005-NMCA-124, ¶ 8, 138 N.M. 477, 122 P.3d 9
844 (“[W]e review the evidence in the light most favorable to support the trial court’s 10
findings, resolving all conflicts and indulging all permissible inferences in favor of 11
the decision below.”); Eckhardt v. Charter Hosp. of Albuquerque, Inc., 1998- 12
NMCA-017, ¶ 39, 124 N.M. 549, 953 P.2d 722 (“When the existence of a contract 13
is at issue and the evidence is conflicting or permits more than one inference, it is 14
for the finder of fact to determine whether the contract did in fact exist.” (alteration, 15
internal quotation marks, and citation omitted)). 16
{4} Defendant has not otherwise asserted any facts, law, or argument in her 17
memorandum in opposition that persuade this Court that our notice of proposed 18
disposition was erroneous. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 19
N.M. 754, 955 P.2d 683 (“Our courts have repeatedly held that, in summary calendar 204
cases, the burden is on the party opposing the proposed disposition to clearly point 1
out errors in fact or law.”); State v. Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 2
421, 759 P.2d 1003 (stating that “a party responding to a summary calendar notice 3
must come forward and specifically point out errors of law and fact[,]” and the 4
repetition of earlier arguments does not fulfill this requirement), superseded by 5
statute on other grounds as stated in State v. Harris, 2013-NMCA-031, ¶ 3, 297 P.3d 6
374. 7
{5} Accordingly, for the reasons stated in our notice of proposed disposition and 8
herein, we affirm the district court’s order. 9
{6} IT IS SO ORDERED. 10
______________________________ 11
JULIE J. VARGAS, Judge 12
WE CONCUR: 13
_________________________________ 14
M. MONICA ZAMORA, Chief Judge 15
___________________________________________ 16
ZACHARY A. IVES, Judge 17Ti chiedi come si applica questo testo alla tua situazione?
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