January 7, 2019- Norbert A. Schueller v. Brenda Alberts, No. A-1-CA-37265

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

10
11
12
13

14
15

16
17

18

19
20

21

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico

NORBERT A. SCHUELLER, Filed 1/7/2019 8:52 AM
Plaintiff/Petitioner-Appellant, Md. ~ ff
Mark Reynolds
Vv. No. A-1-CA-37265
BRENDA ALBERTS, BEATRICE BELL,

and NANCY C. SANCHEZ, -
Defendants-Appellees,

and

COUNTY OF VALENCIA,

DANNY P., MONETTE,

BEATRICE BELL, and

NANETTE SANCHEZ,
Respondents-Appellees.

APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
Cindy M. Mercer, District Judge

Norbert A. Schueller
Belen, NM

Pro Se Appellant

Daniel J. Macke
Rio Rancho, NM

for Appellees

1 	MEMORANDUM OPINION
2 V ANZI, Chief Judge.
3 	{t} 	Plaintiff, a self-represented litigant, appeals from the district court's order
4 granting Defendants' and Respondents' motion to dismiss and dismissing Plaintiffs
5 complaint with prejudice. In this Court's notice of proposed disposition, we proposed
6 to summarily affirm. Plaintiff filed a memorandum in opposition (MIO), which we
7 have duly considered. Remaining unpersuaded, we affirm.
8 	{2} 	In his memorandum in opposition, Plaintiff continues to argue that the district
9 court erred in granting the motion to dismiss with prejudice pursuant to the Tort
10 Claims Act's immunity provision essentially because defamation could not possibly
11 	be within the scope of Defendants' duties since defamation could not have been
12 authorized as a duty. [See MIO 10-19] However, as we explained in our calendar
13 	notice and as the case law cited by Plaintiff reiterates, it is not that Defendants'
14 purportedly tortious acts needed to be authorized in order to be deemed within the
15 	scope of their duties, but that Defendants needed to be acting within the scope of their
16 duties when they purportedly committed the tortious act. [See MIO 11-13; CN 4-6]
17 See Celaya v. Hall, 2004-NMSC-005, ,r,r 22-26, 135 N.M. 115, 85 P.3d 239. In the
18 present case, according to the information before the district court, Defendants were
19 at work and working for Valencia County when they purportedly committed the
2

1 defamation. [See RP 13; CN 6] As such, they were acting within the scope of their
2 duties as employees of Valencia County when they purportedly committed such act.
3 See id. 1 28. Accordingly, they are immune from Plaintiffs lawsuit pursuant to
4 NMSA 1978, Section 41-4-4 (2001 ); such immunity has not been waived pursuant
5 to NMSA 1978, Sections 41-4-5 through-12 (1976, as amended through 2007); and
6 the complaint was properly dismissed with prejudice. [See id.] See id.
7 	{3} 	Plaintiff does note via two footnotes that Defendants were not, in fact, working
8 during the time that they purportedly committed the defamation and that they just
9 happened to be on county property at the time. [MIO 2 n.3-4] However, Plaintiff does
10 not point out where this information was brought to the attention of the district court,
11 	and, after reviewing the record, we have not found any reference to such information
12 	in the materials presented to the district court. As this Court may not consider new
13 	information on appeal, we decline to .consider these purported facts further. See
14 Durhamv.Guest,2009-NMSC-007,110, 145 N.M. 694, 204P.3d 19 (stating that the
15 	"reference to facts not before the district court and not in the record is inappropriate
16 and a violation of our Rules of Appellate Procedure" and declining to consider a
17 party's new factual assertions on appeal); see also Rule 12-321(A) NMRA (stating
18 that, "[t]o preserve an issue for [appellate] review, it must appear that a ruling or
19 decision by the trial court was fairly invoked"); Benz v. Town Ctr. Land, LLC, 2013-
3

1 NMCA-111, ~ 24,314 P.3d 688 ("To preserve an issue for review on appeal, it must
2 appear that appellant fairly invoked a ruling of the trial court on the same grounds
3 argued in the appellate court." (internal quotation marks and citation omitted)).
4 	{4} 	Plaintiff has not otherwise asserted any facts, 	law, 	or argument in his
5 memorandum in opposition that persuade this Court that our notice of proposed
6 disposition was erroneous. See Hennessy v. Duryea, 1998-NMCA-036, ~ 24, 124
7 N.M. 754,955 P.2d 683 ("Our courts have repeatedly held that, in summary calendar
8 cases, the burden is on the party opposing the proposed disposition to clearly point
9 out errors in fact or law."); State v. Mondragon, 1988-NMC~-027, ~ 10, 107 N.M.
10 421, 759 P.2d 1003 (stating that a party responding to a summary calendar notice
11 	must come forward and specifically point out errors oflaw and fact, and the repetition
12 of earlier arguments does not fulfill this requirement), superseded by statute on other
13 grounds as stated in State v. Harris, 2013-NMCA-031, ~ 3, 297 P.3d 374. We
14 therefore refer Plaintiff to our analysis therein.
15 	{5} 	Accordingly, for the reasons stated in our notice of proposed disposition and
16 herein, we affirm the district court's order.
17 	{6}
18
19
IT IS SO ORDERED.
LI
4

1] WE CONCUR:

4 9A Be

5| JENNIFER L. ATTREP, Judge