February 28, 2025- Valene Bell v. Allsup Enterprises, Inc., No. A-1-CA-40240

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
a Court of Appeals of New Mexico
Opinion Number: Filed 2/28/2025 9:53 AM
Filing Date: February 28, 2025 Ramon J. Maestes
Chief Clerk
No. A-1-CA-40240

VALENE BELL,
Plaintiff-Appellant,
Vv.

ALLSUP ENTERPRISES, INC. d/b/a
ALLSUP’S CONVENIENCE STORES, INC.;
ALLSUP’S CONVENIENCE STORES, INC.
d/b/a ALLSUP’S CONVENIENCE STORES;
LONNIE D. ALLSUP, Director & President;
and HOWARD BRISTER, local store manager,

Defendants-Appellees.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
David P. Reeb, Jr., District Court Judge

Cooper Appeals, P.L.L.C
Kirk Cooper
El Paso, TX

Lovett Law Firm
Robert Lovett
Jeffery W. McElroy
E] Paso, TX

for Appellant

—

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Lindsey Law Firm, L.L.C.
Daniel R. Lindsey
Clovis, NM

for Appellees

OPINION	1
IVES, Judge.	2
{1} 	Plaintiff Valene Bell appeals the dismissal of her personal injury lawsuit	3
against Defendants Allsup Enterprises, Inc., Allsup’s Convenience Stores, Inc.,	4
Lonnie D. Allsup, and Howard Brister. The district court dismissed Plaintiff’s	5
complaint on its own motion pursuant to Rule 1-041(E)(2) NMRA. We hold that this	6
was error because Rule 1-041(E)(2) does not authorize dismissal when, as in this	7
case, a scheduling order has been entered. We therefore reverse and remand for	8
reinstatement of Plaintiff’s case.	9
BACKGROUND	10
{2} 	This case began on July 21, 2016, when Plaintiff filed her complaint seeking	11
damages to compensate her for personal injuries that she alleged she suffered after	12
slipping and falling in a gas station and convenience store owned and operated by	13
Defendants. In August of 2016, Plaintiff served Defendants with her complaint along	14
with several interrogatories and requests for production. Defendants filed their	15
answer 	to 	the 	complaint 	in 	October 	2016, 	and 	later 	that 	year 	they 	issued	16
interrogatories 	and 	requests 	for 	production, 	which 	Plaintiff 	responded 	to 	in	17
December 2016. The record does not reveal whether further discovery occurred	18
between December 2016 and the next entries on the district court’s docket: a series	19
of deposition notices filed in September, November, and December 2017.	20

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{3} 	On April 3, 2018, Plaintiff requested a scheduling conference pursuant to Rule	1
1-016(B) NMRA, and, after holding a scheduling conference on May 14, 2018, the	2
district court entered a scheduling order on June 4, 2018. The order set trial for	3
March 2019 and imposed various pretrial deadlines, including completion of	4
discovery by September 14, 2018.	5
{4} 	On September 11, 2018, Plaintiff filed an unopposed motion to extend the	6
discovery deadline until December 31, 2018. In support of the motion, Plaintiff	7
asserted that she needed more time to depose a physician who had treated her and	8
who would testify as an expert witness. The district court granted the motion,	9
extending the deadline to December 31, 2018.	10
{5} 	On December 21, 2018, Plaintiff moved to extend the discovery deadline for	11
an additional two months, until February 28, 2019. Plaintiff asserted that her treating	12
physicians were unwilling to testify as expert witnesses; that she had designated Dr.	13
Jeffrey D. Reuben as her expert witness; that Dr. Rueben was in the process of	14
reviewing Plaintiff’s medical records and would then provide a report explaining his	15
expert opinions; and that the requested extension would allow Plaintiff and	16
Defendants to participate in a deposition of Dr. Reuben. Defendants opposed the	17
motion but did not file a response. The district court did not rule on the motion.	18
{6} 	On February 4, 2019, Plaintiff filed an unopposed motion to continue the	19
March 2019 trial for at least ninety days. Plaintiff repeated the argument she had	20

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made in her motion to extend the discovery deadline, and she added that Dr. Reuben	1
would not be available for deposition until March. Plaintiff stated that she would	2
like to reschedule trial for a later date. On February 5, 2019, the district court entered	3
an order granting the motion, vacating the March 2019 trial, and stating that the case	4
“will be set on the docket on the next available trial date.” No trial date was ever set.	5
{7} 	Over two years later, on February 25, 2021, the district court dismissed the	6
case on its own motion. The court found that no action had been taken in the case	7
since 	October 	30, 	2019, 	(a 	reference 	to 	docket 	entries 	regarding 	Plaintiff’s	8
substitution of counsel) and that there had been no compliance with Rule 1-041(E).	9
The court stated that the matter should be dismissed without prejudice unless within	10
thirty days “a party shall file a notice of intent to prosecute the matter to completion,”	11
in which case the order of dismissal would be stayed.	12
{8} 	Plaintiff moved to reinstate the case within thirty days. Plaintiff stated that	13
“[t]o date” the parties had not requested a scheduling conference to obtain a new	14
trial setting. In response, Defendants argued that Plaintiff failed to plead “any facts	15
which would provide the court with good cause to excuse the extreme neglect to	16
prosecute her case for over one year.” The district court denied Plaintiff’s motion	17
and provided this rationale:	18
Plaintiff has failed to plead good cause as is required by Rule	19
1-041(E)(2) for her failure to take action to prosecute her case	20
essentially since May 2, 2018, when a scheduling conference was held.	21
Additionally, during the May 2, 2018, scheduling conference, a trial	22

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date of March 18th, 19th, and 20th, 2019 was set, but the trial setting	1
was continued by Plaintiff. Now, more than two years after the trial	2
date, no action has been taken to conclude this matter.	3
The court dismissed the case without prejudice.	4
{9} 	Plaintiff sought relief from the judgment by filing a motion pursuant to Rule	5
1-060(B) NMRA. Plaintiff made the argument at the heart of this appeal: “[A]	6
scheduling order was entered and active,” as modified by the order continuing trial,	7
and the district court therefore was not permitted to dismiss the case pursuant to Rule	8
1-041(E)(2). 	The 	parties 	made 	various 	other 	arguments 	not 	relevant 	to 	the	9
dispositive issue on appeal. The district court denied the motion for relief and	10
dismissed Plaintiff’s case.	11
DISCUSSION	12
{10} 	Plaintiff’s appeal presents a purely legal question about how to interpret Rule	13
1-041(E)(2). Although the overarching standard of review for Rule 1-041(E)	14
dismissals is abuse of discretion, an abuse of discretion occurs when a ruling is based	15
on a misunderstanding of the law, Rodriguez ex rel. Rodarte v. Sanchez, 2019-	16
NMCA-065, ¶ 11, 451 P.3d 105, and because the meaning of a rule of civil procedure	17
is a legal question, our review here is exclusively de novo. See N.M. Uninsured	18
Emp.’s Fund v. Gallegos, 2017-NMCA-044, ¶ 15, 395 P.3d 533. We interpret rules	19
exactly as we do statutes; critically, when the plain meaning of the text is	20
unambiguous, our interpretation begins there and ends there too. See id.	21

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{11} 	We perceive no ambiguity in the plain meaning of Rule 1-041(E)(2) with	1
respect to the question before us: whether the district court—having entered a	2
scheduling order—had the authority to dismiss Plaintiff’s case pursuant to Rule 1-	3
041(E)(2). The text of the rule tells us that the answer is no. The first phrase of the	4
first sentence of Subsection (E)(2) makes clear that the subsection applies only if a	5
pretrial scheduling order has not been entered:	6
Unless a pretrial scheduling order has been entered pursuant to Rule	7
1-016 NMRA, the court on its own motion or upon the motion of a party	8
may dismiss without prejudice the action or any counterclaim, cross-	9
claim or third party claim if the party filing the action or asserting the	10
claim has failed to take any significant action in connection with the	11
action or claim within the previous one hundred and eighty (180) days.	12
(Emphasis added.) In this case, the district court erred by dismissing the case	13
pursuant to Rule 1-041(E)(2) because it had previously entered a Rule 1-016	14
scheduling order.	15
{12} 	We are not persuaded by Defendants’ argument that precedent allows	16
dismissal pursuant to Rule 1-041(E)(2) after entry of a scheduling order if a party	17
has failed to comply with that order. Defendants do not explain how their position	18
can be reconciled with the straightforward reading of the text of Rule 1-041(E)(2).	19
Defendants rely exclusively on a brief passage in Rodriguez, 2019-NMCA-065,	20
¶ 22, about the relationship between scheduling orders and dismissals: “[f]rom [the	21
entry of the scheduling order] forward, under both Rule 1-041(E)(1) and (E)(2), the	22
district court was without discretion to dismiss Plaintiff’s complaint unless it first	23

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found that Plaintiff was not in compliance with the scheduling order.” One problem	1
with Defendants’ reliance on this passage is that Rodriguez was an “appeal from a	2
dismissal under Rule 1-041(E)(1),” Rodriguez, 2019-NMCA-065, ¶ 11—not Rule	3
1-041(E)(2)—and Rodriguez is therefore not authority on the question presented in	4
this appeal. See Maralex Res., Inc. v. Gilbreath, 2003-NMSC-023, ¶ 21, 134 N.M.	5
308, 76 P.3d 626 (“[C]ases are not authority for propositions not considered.”). To	6
the extent that the quoted passage addresses the meaning of Subsection (E)(2), it is	7
dicta. And, in any event, we do not interpret the passage in the same way Defendants	8
do. We decline to accept their interpretation because, as we have explained, it is	9
contrary to the plain meaning of Rule 1-041(E)(2). We instead interpret the passage	10
in a manner consistent with the plain meaning—that is, after the district court in	11
Rodriguez entered a scheduling order, neither Subsection (E)(1) nor Subsection	12
(E)(2) granted the court the authority to do what it did: dismiss the case without a	13
showing of noncompliance with the scheduling order.	14
{13} 	Rodriguez underscores the important point that Rule 1-041(E) does provide a	15
tool for dismissing a case after a scheduling order has been entered. That tool is	16
Subsection (E)(1), but it was not used in this case. Subsection (E)(1) applies to cases	17
with and without scheduling orders, and it permits dismissal only if the nonmoving	18
party “has failed to take any significant action to bring [their] claim to trial or other	19
final disposition within two (2) years from the filing of such action or claim.” In	20

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cases with scheduling orders, an additional requirement must be met before a case	1
may be dismissed. As this Court recognized in Rodriguez, the plain language of	2
Subsection (E)(1) “prohibits a district court from dismissing a party’s action or claim	3
on an opposing party’s motion to dismiss for failure to prosecute if the party	4
opposing dismissal is in compliance with an order entered under Rule 1-016.”	5
Rodriguez, 2019-NMCA-065, ¶ 13; see also Rule 1-041(E)(1) (“An action or claim	6
shall not be dismissed if the party opposing the motion is in compliance with an	7
order entered pursuant to Rule 1-016.”). In the case before us, the district court did	8
not rely on Subsection (E)(1).1
9
{14} 	The scheduling order remained in effect at the time of the dismissal and	10
therefore barred dismissal under Subsection (E)(2), contrary to the final argument	11
made by Defendants. Defendants argue that the scheduling order had somehow	12
expired because of the amount of time that passed between the entry of that order	13
and the entry of the order of dismissal. In support of this argument, Defendants do	14
not cite any precedent or any language in the Rules of Civil Procedure.2 We reject	15
1Even if the district court had invoked Subsection (E)(1), that subsection does
not authorize the procedure that was used to dismiss Plaintiff’s case. Unlike
Subsection (E)(2), Subsection (E)(1) does not allow a district court to act on its own
motion; it only allows dismissal after a party files a motion. Compare Rule 1-
041(E)(2) (allowing a district court to dismiss “on its own motion” or “upon the
motion of a party”), with Rule 1-041(E)(1) (allowing “[a]ny party” to “move to
dismiss”).
2Defendants cite only this Court’s summary calendar memorandum opinion
in Del Curto v. Deschamps, A-1-CA-39314, mem. op. (N.M. Ct. App. Dec. 30,

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Defendants’ argument because it is contrary to Rule 1-016(E), which states that a	1
scheduling order “shall control the subsequent course of the action unless modified	2
by a subsequent order.” In this case, the district court entered two orders that	3
modified the scheduling order—an order extending the discovery deadline and an	4
order continuing the trial setting—and under Rule 1-016(E) the scheduling order	5
remained in effect, as modified, and continued to control the course of the litigation.	6
The scheduling order controlled the course of the litigation because it included the	7
deadlines that would have been used to determine compliance with the scheduling	8
order if Defendants had moved to dismiss pursuant to Rule 1-041(E)(1) or if either	9
party had moved for sanctions pursuant to Rule 1-016(F). The scheduling order also	10
controlled the course of the litigation by barring the district court from dismissing	11
Plaintiff’s case pursuant to Rule 1-041(E)(2).	12
2021) (nonprecedential). Del Curto is not precedent. See Hennessy v. Duryea, 1998-
NMCA-036, ¶¶ 23-25, 124 N.M. 754, 955 P.2d 683 (reiterating that memorandum
opinions are not precedent and urging caution in relying on summary calendar
memorandum opinions). And we are not persuaded by Defendants’ argument that
we should rely on it to affirm the district court. In Del Curto, A-1-CA-39314, mem.
op. ¶¶ 2-4, this Court issued a summary calendar notice proposing to affirm the
dismissal of the plaintiff’s case, and although the plaintiff filed a memorandum in
opposition, the plaintiff did not brief the issues presented to us in that appeal, and
this Court therefore concluded that any argument about those issues had been
abandoned. In contrast, in this appeal, both Plaintiff and Defendants have briefed
those issues, and we have analyzed those issues and reached our holding with the
benefit of full briefing.

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CONCLUSION	1
{15} 	We reverse the dismissal of Plaintiff’s claims and remand this case to the	2
district court for further proceedings consistent with this opinion.	3
{16} 	IT IS SO ORDERED.	4
____________________________	5
ZACHARY A. IVES, Judge	6
WE CONCUR:	7
________________________________	8
JACQUELINE R. MEDINA, Judge	9
_________________________________	10
SHAMMARA H. HENDERSON, Judge	11