September 16, 2019- Board of Education v. Heidi Walker, No. A-1-CA-37882

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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 AM

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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	20

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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	20

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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	17