A-1-CA-35836 | Omnilex

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Court of Appeals of New Mexico
Filed 5/29/2019 11:01 AM

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Court of Appeals of New Mexico
Filed 5/29/2019 11:01 AM

IN THE COURT OF APPEALS OF THE STATE OF NEW woul

DAVID WARNER,
Plaintiff-Appellant,
v. No. A-1-CA-35836

CAROLYNE WALLACE,
MICHAEL KINGSMORE,
BECKY EWING, JUDY VAN
WINKLE, CHARLES E.
HAWTHORNE, EVELYN D.
SAPPINGTON, and CHRIS
STETTHEIMER,

Defendants-Appellees.

APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
Kea W. Riggs, District Judge

David Warner
Roswell, NM

Pro Se Appellant

Carolyne Wallace
Michael Kingsmore
Becky Ewing

Charles E. Hawthorne
Ruidoso, NM

Pro Se Appellees

Judy Van Winkle
Ruidoso Downs, NM

Pro Se Appellee

ark Reynolds

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William N. Griffin
Ruidoso, NM

for Appellees Sappington and Stettheimer

MEMORANDUM OPINION
BOGARDUS, Judge.
{1} Plaintiff David Warner appeals from the district court’s dismissal, with
prejudice, of his amended complaint for failure to state a claim upon which relief
can be granted. For the reasons that follow, we hold that the district court erred in
dismissing Plaintiff's amended complaint as to Defendants Carolyne Wallace,
Charles Hawthorne, Becky Ewing, Michael Kingsmore, and Judy Van Winkle, but
that the district court did not err in dismissing Plaintiff's amended complaint as to
the remaining Defendants. Accordingly, we reverse the dismissal as to Defendants
Wallace, Hawthorne, Ewing, Kingsmore, and Van Winkle and remand for further
proceedings.
BACKGROUND
23 Defendants Evelyn Sappington and Chris Stettheimer are the only Defendants
who have participated on appeal. Neither Plaintiff nor the participating Defendants
provided this Court with detail regarding the facts and circumstances that compelled

Plaintiff to file the lawsuit at issue in this appeal. Our description of the relevant

events is gleaned from the allegations found in Plaintiff's amended complaint, the
district court’s March 16, 2015 order of dismissal, and documents attached thereto.

3} Approximately four years before Plaintiff filed his complaint, Defendants
Wallace and Hawthorne were involved in a legal proceeding seeking to limit
Plaintiff's protests in the Village of Ruidoso and claimed that Plaintiff's actions were
hurting Wallace’s business sales. Defendant Wallace, represented by Defendant
Hawthorne, filed an application for a temporary restraining order and permanent
injunction (the Wallace Complaint) to restrain Plaintiffs protest activities. In the
Wallace Complaint, Defendant Wallace, owner of the Bizarre Barbie Boutique,
alleged that Plaintiffs protest activities were driving down her sales and
discouraging potential customers from shopping at her store. Defendants Ewing and
Kingsmore were involved in the underlying injunctive proceeding by testifying at
the hearing on the matter, and Defendant Van Winkle was also involved, by seeking
to quash a subpoena issued in the underlying proceeding. The remaining Defendants
signed a petition filed with the Village of Ruidoso in support of a restraining order.

{4} In response to the Wallace Complaint, the district court issued a temporary
restraining order and, after a hearing on the matter, issued a preliminary injunction
limiting Plaintiff's protest activities to one hour per day and to the area in front of
the Four Seasons Mall in Ruidoso. At the hearing, Defendants Wallace, Ewing, and

Kingsmore testified to loss of business due to Plaintiff’s activities; in response,

Plaintiff issued subpoenas to the Defendants seeking financial records supporting
their allegations. Defendant Van Winkle did not testify but received a subpoena,
apparently because she was the owner/agent of one of the businesses that claimed
loss of business due to Plaintiffs activities, and obtained the services of Defendant
Hawthorne to attempt to quash the subpoena. The recipient Defendants then moved
to quash the subpoenas. Soon thereafter, Defendant Wallace moved to dismiss the
Wallace Complaint, and the district court granted the motion. Approximately four
years after the preliminary injunction was dismissed, Plaintiff filed a complaint for
civil damages against Defendants, and approximately two months later, filed the
amended complaint at issue in this appeal.

{5} In his amended complaint, Plaintiff alleges that Defendant Hawthorne filed
the Wallace Complaint “without investigating the legitimacy of the allegations or
evidence of proof’ and without probable cause. Plaintiff further alleges that
Defendant Hawthorne made misrepresentations to the district court. Plaintiff alleges
that Defendant Wallace filed the Wallace Complaint in order to stop his free speech
activities, to remove him from a public venue, or to harass him. Plaintiff also alleges
that Defendant Wallace made intentional and/or reckless misrepresentations to the
district court. Further, Plaintiff alleges that Defendant Wallace misused process by
moving to quash subpoenas and dismissing the Wallace Complaint, actions that had

the effect of denying him discovery in the matter. Plaintiff alleges that Defendants

Ewing, Kingsmore, and Van Winkle acted in concert with Defendant Wallace to
have the subpoenas quashed and that Defendants Ewing and Kingsmore made
misrepresentations to the district court that “were intentional, untrue, known to be
untrue or were recklessly made[.]”

{6} Finally, Plaintiff alleges that the remaining Defendants who signed the
petition for a restraining order—Charlotte Stombrough, Evelyn Sappington, Rene
Rudolph, Connie Hall, Chris Stettheimer, Nancy Stokes, Daniel Woods, Tina
Barker, Vickie Maveety, Brian Higdon, Coco Fickel, Sandra Hardwick, Helen
Maynard, and Arlene Layne (collectively, Petition Signers)}—acted with Defendant
Wallace in promoting the “frivolous action” instituted by the Wallace Complaint.
Plaintiff alleges that he was damaged by the actions of Defendants, including by
being put in “extreme duress” and experiencing “severe mental and emotional
distress[.]”

{7} Two of the Petition Signers, Defendants Sappington and Stettheimer, filed
Rule 1-012(B)(6) NMRA motions to dismiss Plaintiff's amended complaint for
failure to state a claim upon which relief could be granted.' After a hearing on the

motion, the district court dismissed with prejudice the amended complaint against

' Defendant Hawthorne also filed a Rule 1-012(B)(6) motion to dismiss;
however, it was in reference to Plaintiff's second amended complaint. We note that
the record does not reflect Plaintiff's second amended complaint was filed. For that
reason, we do not address Defendant Hawthorne’s motion.

all the Petition Signers; the court found Plaintiff's allegations against them
insufficient to state a claim for a grant of relief. Approximately one year later, at the
close of a hearing on pending motions and case status, the district court sua sponte
dismissed with prejudice Plaintiff's amended complaint against the remaining
Defendants concluding that the allegations in Plaintiff's amended complaint failed
to state a claim upon which relief could be granted.

DISCUSSION

{833 | Plaintiff, appearing pro se, raises six issues on appeal, many of which appear
overlapping or duplicative. “Although pro se pleadings are viewed with tolerance, a
pro se litigant, having chosen to represent himself, is held to the same standard of
conduct and compliance with court rules, procedures, and orders as are members of
the bar.” Newsome v. Farer, 1985-NMSC-096, § 18, 103 N.M. 415, 708 P.2d 327
(citation omitted). This Court will review pro se arguments to the best of its ability,
but cannot respond to unintelligible arguments. See Clayton v. Trotter, 1990-
NMCA-078, {ff 12-17, 110 N.M. 369, 796 P.2d 262 (declining to address a pro se
party’s unintelligible and unascertainable arguments).

{9} Having reviewed Plaintiff's arguments, we believe they can be grouped into
three categories and summarized as follows. First, the district court erred in sua
sponte dismissing the amended complaint against Defendants Wallace, Hawthorne,

Ewing, Kingsmore, and Van Winkle. Concluding this was error, we need not

determine whether Plaintiff has stated a claim for malicious abuse of process or civil
conspiracy against these Defendants. Second, the district court erred in dismissing
the Petition Signers because the facts pleaded in the complaint sufficiently allege
civil conspiracy. Relatedly, the district court erred in dismissing the complaint
against ail the Petition Signers because not all these Defendants moved for dismissal
under Rule 1-012(B)(6) and some were not present at any of the hearings. Third, this
Court should “perfect the record proper” due to inadvertent or intentional errors
contained therein.

I. The District Court’s Dismissal of Plaintiff’s Amended Complaint

{10} The district court first dismissed the claims against the Petition Signers for
civil conspiracy and then sua sponte dismissed the amended complaint against the
remaining Defendants for malicious abuse of process and civil conspiracy. We first
set out the standard of review for dismissal for failure to state a claim, then address
the district court’s sua sponte dismissal, and finally address the dismissal of the
Petition Signers.

A. Standard of Review

113}. Whether the district court properly dismissed Plaintiff's claims is a question
of law, which we review de novo. Valdez v. State, 2002-NMSC-028, 7 4, 132 N.M.
667, 54 P.3d 71. “In reviewing a [district] court’s decision to grant a motion under

Rule 1-012(B)(6) . . ., we accept as true all facts properly pleaded.” Delgado v.

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Phelps Dodge Chino, Inc., 2001-NMSC-034, § 2, 131 N.M. 272, 34 P.3d 1148. “A
motion to dismiss for failure to state a claim ... tests the legal sufficiency of the
complaint[.]” Derringer v. State, 2003-NMCA-073, 9 5, 133 N.M. 721, 68 P.3d 961.
We require only that “the essential elements prerequisite to the granting of the relief
sought can be found or reasonably inferred” from the complaint. /d. “A complaint
should not be dismissed unless there is a total failure to allege some matter essential
to the relief sought.” Lohman v. Daimler-Chrysler Corp., 2007-NMCA-100, 9 4, 142
N.M. 437, 166 P.3d 1091. Our Supreme Court has “maintained our state’s notice
pleading requirements, emphasizing our policy of avoiding insistence on
hypertechnical form and exacting language.” Zamora v. St. Vincent Hosp., 2014-
NMSC-035, § 10, 335 P.3d 1243. “[T]he principal function of pleadings is to give
fair notice of the claim asserted.” Malone v. Swift Fresh Meats Co., 1978-NMSC-
007, 9 10, 91 N.M. 359, 574 P.2d 283.

B. The District Court Erred in Its Sua Sponte Dismissal of the Amended

Complaint Against Defendants Wallace, Hawthorne, Ewing, Kingsmore,
and Van Winkle

12} Plaintiff's amended complaint asserted claims of malicious abuse of process
and civil conspiracy against Defendants Wallace, Hawthorne, Ewing, Kingsmore,
and Van Winkle. At a hearing on pending motions and case status, the district court
sua sponte dismissed with prejudice Plaintiff's amended complaint against these

Defendants, concluding that the allegations in Plaintiff's amended complaint failed

to state a claim upon which relief could be granted. Plaintiff argues that this sua
sponte dismissal was in error. We agree.

133. Although our Supreme Court has recognized the authority of a district court
to sua sponte dismiss “a complaint which is patently deficient[,]” the Court
cautioned that such dismissal “should be sparingly exercised[.]” Birdo v. Rodriguez,
1972-NMSC-062, ff 10-11, 84 N.M. 207, 501 P.2d 195. Furthermore, it is well-
established that “a sua sponte dismissal of a complaint for failure to state a claim
upon which relief could be granted is erroneous unless the parties have been afforded
notice and an opportunity to amend the complaint or otherwise respond.” 35B C.J.S.
§ 837, at 119 (2014) (footnote omitted); cf State ex rel. Children, Youth & Families
Dep’t v. William M., 2007-NMCA-055, J 37, 141 N.M. 765, 161 P.3d 262 (“The
essence of due process is notice and an opportunity to be heard at a meaningful time
and in a meaningful manner.” (internal quotation marks and citation omitted)). We
note two flaws in the district court’s sua sponte dismissal of Defendants Wallace,
Hawthorne, Ewing, Kingsmore, and Van Winkle.

14; First, before the hearing, Plaintiff was not given notice of the possibility that
his claims would be dismissed. Rather, the hearing notice listed “Motion for a New
Hearing/Scheduling Conference” as the matters to be heard. Following the court’s
denial of Plaintiff's motion for a new hearing, the district court stated that it would

proceed with a “scheduling conference.” Before beginning the scheduling

conference, however, the district court asked for confirmation from Defendant
Hawthorne that he had not yet filed a motion to dismiss pursuant to Rule 1-
012(B)(6), which he had previously indicated he would file. After receiving that
confirmation and despite there being no pending motion for dismissal, the district
court stated, “I am hesitant to continue to let this case linger without ruling on a
motion for dismissal regarding the [remaining Defendants].” The district court then
stated that it had thoroughly reviewed the allegations against the remaining
Defendants and determined that there is no legal basis for Plaintiff's claim. For that
reason, the district court dismissed the case as to all remaining Defendants. Plaintiff
was not afforded the opportunity to respond orally at the hearing or in writing once
the district court announced its intention to sua sponte dismiss Defendants Wallace,
Hawthorne, Ewing, Kingsmore, and Van Winkle. Furthermore, the record also
reflects that Plaintiff was not allowed to amend his previously-amended complaint
before his case was dismissed, even though he had twice moved for leave to amend.
{15} Second, upon a review of the allegations in the amended complaint against
Defendants Wallace, Hawthorne, Ewing, Kingsmore, and Van Winkle, we cannot
say that the amended complaint is patently deficient in its allegations of malicious
abuse of process and civil conspiracy. Given the district court’s failure to provide
adequate notice and opportunity to be heard, we find it is unnecessary to undertake

a comprehensive review of the sufficiency of the allegations in the amended

complaint as to these Defendants. Nonetheless, we examine the allegations in the
amended complaint as to Defendants Wallace, Hawthorne, Ewing, Kingsmore, and
Van Winkle to explain why the allegations are not patently deficient.

{16} To state a claim of malicious abuse of process, Plaintiff must plead facts
sufficient to show: “(1) the use of process in a judicial proceeding that would be
improper in the regular prosecution or defense of a claim or charge; (2) a primary
motive in the use of process to accomplish an illegitimate end; and (3) damages.”
Durham vy. Guest, 2009-NMSC-007, § 29, 145 N.M. 694, 204 P.3d 19. The first
element can be demonstrated by “filing a complaint without probable cause”; an
“irregularity or impropriety suggesting extortion, delay, or harassment”; or “conduct
formerly actionable under the tort of abuse of process.” /d. (alteration, internal
quotation marks, and citation omitted).

{173} Here, Plaintiff's amended complaint alleges that Defendant Hawthorne filed
the Wallace Complaint “without investigating the legitimacy of the allegations or
evidence of proof” and that Defendant Wallace had no probable cause for filing the
complaint. While these allegations alone would be sufficient to establish the first
element of his malicious abuse of process claim, see Durham, 2009-NMSC-007,
{ 29 (stating that the filing of a complaint without probable cause is sufficient to
state a malicious abuse of process claim), Plaintiff's amended complaint further

alleges that a preliminary injunction was issued in the underlying case, but that the

preliminary injunction was procured by false testimony. The fact that a preliminary
injunction was issued in the underlying case suggests that there may be probable
cause. See Bokum v. Elkins, 1960-NMSC-091, J 14, 67 N.M. 324, 355 P.2d 137
(recognizing that there is authority indicating that an injunction granted after notice
and hearing to the parties is conclusive of probable cause). However, Plaintiff's
allegations that the preliminary injunction was procured by false testimony challenge
the legitimacy of probable cause for the injunction. See Restatement (Second) of
Torts § 675 cmt. d (stating that, in civil proceedings, a person “cannot have a
reasonable belief in the existence of the facts on which the proceedings are based if
he knows that the alleged facts are not true and his claim is based on false
testimony”). The factual allegations against Defendants Hawthorne and Wallace
appear sufficient to satisfy the first element of the malicious abuse of process claim.
See Durham, 2009-NMSC-007, 29; Derringer, 2003-NMCA-073, { 5.

{183 Next, Plaintiff alleges that the filing of the Wallace Complaint was done to
stop his free speech activities, to remove him from a public venue, or to harass him.
It seems that any of these reasons could serve as the illegitimate end as contemplated
in the second element of malicious abuse of process—“a primary motive in the use
of process to accomplish an illegitimate end[.]” See Durham, 2009-NMSC-007,
4 29. Finally, as to the third element, Plaintiff alleges he suffered damages and

injuries, including “extreme duress” and “severe mental and emotional distress,”

seemingly satisfying the final element. See id. Based on the foregoing, we cannot
say that the amended complaint is patently deficient in its allegations of malicious
abuse of process against Defendants Wallace and Hawthorne.

{19} To state a claim of civil conspiracy, Plaintiff must plead facts sufficient to
allege: “(1) that a conspiracy between two or more individuals existed; (2) that
specific wrongful acts were carried out by the defendants pursuant to the conspiracy;
and (3) that the plaintiff was damaged as the result of such acts.” Silva v. Town of
Springer, 1996-NMCA-022, § 25, 121 N.M. 428, 912 P.2d 304. “The existence of
the conspiracy must be pled either by direct allegations or by allegation of
circumstances from which a conclusion of the existence of a conspiracy may be
reasonably inferred.” Valles v. Silverman, 2004-NMCA-019, § 28, 135 N.M. 91, 84
P.3d 1056.

20} “[A] civil conspiracy by itself is not actionable, nor does it provide an
independent basis for liability unless a civil action in damages would lie against one
of the conspirators.” Ettenson v. Burke, 2001-NMCA-003, 4 12, 130 N.M. 67, 17
P.3d 440 (internal quotation marks and citation omitted). “A civil conspiracy must
actually involve an independent, unlawful act that causes harm—something that
would give rise to a civil action on its own.” Jd. “Without an actionable civil case
against one of the conspirators, however, an agreement, no matter how conspiratorial

in nature, is not a separate, actionable offense.” Jd. Having concluded that Plaintiff's

amended complaint appears to state a claim for malicious abuse of process against
Defendants Hawthorne and Wallace, malicious abuse of process may serve as the
separate, actionable offense underpinning Plaintiff's civil conspiracy claims.

213 Plaintiff's amended complaint alleges that Defendants Wallace, Ewing,
Kingsmore, and Van Winkle conspired to promote the underlying action by (1)
making misrepresentations to the court and (2) circumventing discovery, which
would have revealed those misrepresentations, by seeking to have subpoenas
quashed and the complaint dismissed. Plaintiff alleges the underlying action had the
improper purpose of stopping his free speech activities, removing him from a public
venue, or harassing him. Plaintiff also alleges damages based on these acts of
Defendants. While Plaintiff alleges Defendant Wallace was the controlling or
dominating force in the underlying lawsuit, Plaintiffs other allegations appear to be
sufficient to allege the existence of a conspiracy because Defendants Ewing,
Kingsmore, and Van Winkle participated in the underlying action by giving
testimony regarding lost income and by moving to quash the subpoenas. Based on
the foregoing, we cannot say that the amended complaint is patently deficient in its
allegations of civil conspiracy with regard to these Defendants. See Valles, 2004-
NMCA-019, { 28 (concluding allegations that the defendants conspired to bring the

lawsuit with an improper purpose resulting in damage to the plaintiff, as well as the

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sanctioning of, encouraging of, and participation in the lawsuit, were sufficient to
state a claim of civil conspiracy).

223. Therefore, we conclude it was error for the district court to sua sponte dismiss
the amended complaint against Defendants Wallace, Hawthorne, Ewing,
Kingsmore, and Van Winkle.

C. The District Court Did Not Err in Its Dismissal of the Amended
Complaint Against the Petition Signers

23} Plaintiff's complaint also alleges civil conspiracy against the Petition Signers.
Despite “accept[ing] all well-pleaded factual allegations in the complaint as true and
resolv[ing] all doubts in favor of the sufficiency of the complaint,” Delfino v. Griffo,
2011-NMSC-015, 99, 150 N.M. 97, 257 P.3d 917 (internal quotation marks and
citation omitted), we conclude that Plaintiff has failed to state a claim as to the
Petition Signers. Plaintiff has alleged only that the Petition Signers “promoted”
Defendant Wallace’s “frivolous action” by signing a petition. Plaintiff's amended
complaint contains no further allegations that connect the petition signed by these
Defendants to Defendant Wallace’s underlying cause of action, which is the basis
for the conspiracy claim. Rather, the amended complaint only alleges the petition
was submitted to the Village of Ruidoso and does not allege that Defendant Wallace
relied on the petition when she sought the restraining order. Moreover, we are
unaware of any authority that concludes the signing of a petition alone is sufficient

to sustain a claim for civil conspiracy as a matter of law, nor does Plaintiff cite any

such authority. See Curry v. Great Nw. Ins. Co., 2014-NMCA-031, { 28, 320 P.3d
428 (“Where a party cites no authority to support an argument, we may assume no
such authority exists.”). For these reasons, we conclude that Plaintiff has failed to
state a claim of civil conspiracy against the Petition Signers and affirm their
dismissal.

24, Plaintiff next contends the district court erred in dismissing the amended
complaint against all the Petition Signers because not all of these Defendants moved
for dismissal under Rule 1-012(B)(6) and some were not present at any of the
hearings. While the district court ruled on Defendant Sappington’s and Defendant
Stettheimer’s Rule 1-012(B)(6) motions to dismiss, the record reflects that all of the
served Petition Signers filed pleadings in which they requested dismissal of
Plaintiff's cause of action. It appears that Defendant agrees that all of the served
Petition Signers had filed pleadings wherein they requested dismissal of his
complaint. For this reason, Plaintiff's contention that not all of the Petition Signers
had requested that his complaint be dismissed is not supported by the record.
Additionally, Plaintiff has not cited any authority that supports his claim that a
defendant must attend a hearing in order to be dismissed. See In re Adoption of Doe,
1984-NMSC-024, 4 2, 100 N.M. 764, 676 P.2d 1329 (“Issues raised in appellate

briefs which are unsupported by cited authority will not be reviewed by us on

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appeal.”). Because Plaintiffs contentions are unsupported by the record and legal
authority, we decline to address them further.
IJ. _— Plaintiff Has Not Identified Any Omissions in the Record Proper
253 Citing Rule 12-209(C) NMRA, Plaintiff argues that this Court should correct
or modify the record due to claimed inadvertent or intentional errors contained
therein. In relevant part, Rule 12-209(C) reads,

If anything material to either party is omitted from the record proper by

error or accident, the parties by stipulation, or... the appellate court on

motion or its own initiative, may direct that the omission be corrected,

and a supplemental record proper transmitted to the appellate court.
(Emphasis added.) Our Supreme Court has reasoned that Rule 12-209(C) is broadly
worded “[b]ecause it is in the interest of justice to allow the parties to properly
present their claims on appeal[.]” State v. Antillon, 2000-NMSC-014, 12, 129 N.M.
114, 2 P.3d 315. While Plaintiff points this Court to claimed errors, he does not
identify any omissions contained in the record proper nor does he argue that the
errors affected his ability to properly present his claims on this appeal. Plaintiff does
not cite any authority indicating this Court is allowed to correct the record proper
beyond omissions. See Curry, 2014-NMCA-031, { 28. Furthermore, even if such

authority did exist, the claimed errors do not change the foregoing analysis of

Plaintiff's claims. Therefore, we decline to apply Rule 12-209(C) in this case.

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CONCLUSION
{26} | We reverse the district court’s dismissal of Plaintiff’'s amended complaint as
to Defendants Wallace, Hawthorne, Ewing, Kingsmore, and Van Winkle and affirm

the dismissal of all other Defendants. We remand for further proceedings.

273} ITISSO ORDERED.

hs tro~ Goya clus.

KRISTINA BOGARDUS, Judge

WE CONCUR:

RL. ATTREP, Judge

AGQUELINE R. MEDINA, Judge

May 29, 2019- David Warner v. Carolyne Wallace, No. A-1-CA-35836

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