January 7, 2019- Hamood Malik v. Michael J. Golden, No. A-1-CA-37292

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO:
Court of Appeals of New Mexico
HAMOOD MALIK, Filed 1/7/2019 8:55 AM
Plaintiff-Appellant, Md. ~fof
Mark Reynolds
Vv. A-1-CA-37292
MICHAEL J. GOLDEN,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Francis J. Mathew, District Judge
Malik Hamood
Santa Cruz, NM

Pro Se Appellant

Sutin, Thayer & Browne, P.C.
Thomas E. Benjamin
Albuquerque, NM
for Appellee
MEMORANDUM OPINION
VANZI, Chief Judge.
(43 Plaintiff appeals the dismissal of his lawsuit arising out of Defendant’s

representation of Plaintiff’s wife in a divorce action. [DS 1-2] This Court issued a
notice of proposed summary disposition, proposing to affirm the district court’s

dismissal on the basis of res judicata. [CN 5] Plaintiff has filed a memorandum in

1 opposition to that proposed disposition. Having duly considered that memorandum,
2 we remain unpersuaded and now affirm.
3 	{2} 	In his memorandum opposing affirmance, Plaintiff continues to assert that res
4 judicata should not be applied to this suit because he is attempting to assert claims
5 that he did not assert in the divorce action. [MIO 4] As our notice of proposed
6 disposition pointed out, however, res judicata "does not depend upon whether the
7 claims arising out of the same transaction were actually asserted in the original action,
8 as long as theycouldhavebeenasserted." [CN 4(quotingFordv. N.M Dep'tofPub.
9 Safety, 1994-NMCA-154, ,T 32, 119 N.M. 405, 891 P.2d 546)] Plaintiffs continued
10 assertion that he did not actually assert his current claims in the prior suit does not
11 	provide this Court with any basis to reverse the dismissal entered below. See State v.
12 Mondragon, 1988-NMCA-027, ,T 10, 107 N.M. 421, 759 P.2d 1003 (explaining that
13 	the repetition of earlier arguments does not meet a party's burden to come forward
14 and specifically point out errors of law or fact in a notice of proposed summary
15 	disposition), superseded by statute on other grounds as stated in State v. Harris,
16 2013-NMCA-031, ,T 3,297 P.3d 374.
17 {3} 	Plaintiff also continues to assert that it would have been illogical to raise his
18 current claims in the prior action. In his docketing statement, Plaintiff asserted that
19 he could not "pursue fraud claims against [Defendant] in the same case where
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1 [Defendant] 	has 	already 	successfully 	deceived 	the 	judge." 	[DS 	2] 	In 	his
2 memorandum, Plaintiff now asserts that "the [j]udge and [Defendant] are working
3 together to maximize their own ill-gotten financial gains." [MIO 5] These allegations,
4 of course, have not been proven. Nonetheless, we understand these allegations, along
5 with those contained in Plaintiffs complaint, to be the basis of Plaintiffs belief that
6 he would not have succeeded if he had asserted his fraud claims during the divorce
7 proceedings in which he believed that fraud was being committed.
8 	{4} 	The question before this Court, however, is not what would have happened if
9 Plaintiff had brought his claims when he had the opportunity to do so. The question
10 before this Court is simply whether those claims could have been asserted. See Moffat
11 	v. Branch, 2005-NMCA-103, ,r 18, 138 N.M. 224, 118 P.3d 732 (noting that res
12 judicata bars a plaintiffs "legal theories that he actually raised in the prior action as
13 	well as any theories that he could have raised"). Nothing in Plaintiffs memorandum
14 persuades us that he could not have raised these issues during the prior litigation.
15 	Having failed to do so, res judicata bars him from raising them in a separate action.
16 	{5} 	Thus, for the reasons stated here and in our notice of proposed summary
17 disposition, we affirm the district court's order of dismissal.
3

li ITISSO ORDERED.

M. VANZI, Chief Judge

4] WE CONCUR:

J one

6M. MONICA ZAMGRA, Judge