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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Court of Appeals of New Mexico

PYISASAO

Filed 1/9/2020 8:10 AM

MARY K. HILLEY,

Plaintiff-A ppellant,

Mark Reynoltis
V. No. A-1-CA-36741

MICHAEL CADIGAN, an individual,
CADIGAN LAW FIRM PC,
a New Mexico corporation,

Defendants-Appellees.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Beatrice Brickhouse, District Judge

11
12

Mary K. Hilley
Albuquerque, NM

Pro Se Appellant

Sheehan & Sheehan, P.A.

15
16
17

Joshua A. Allison
Briggs F. Cheney
Albuquerque, NM

for Appellees

VANZI, Judge.

a3~—-s- Plaintiff Mary Hilley appeals the district court’s grant of summary judgment

in favor of Defendants Michael Cadi

on Plaintiff's claims for legal malpractice, breach of contract, negligent

misrepresentation, fraud, and violations of the Unfair Practices Act (UPA), NMSA

1978, Section 57-12-2(D)A7)
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district court should not have granted summary judgment on her malpractice claims

against Defendants because (1) the district court erred, and violated Plaintiffs

constitutional rights, by refusing to allow testimony from Plaintiff's proffered

expert, Mary Kay Root, at the summary judgment hearing, and/or in refusing to

consider Ms. Root’s affidavit; (2) the law of the case doctrine precluded the grant of

summary judgment; (3) no expert testimony was required to create a material issue

of fact regarding Defendants’ alleged breach of the standard of care, or the affidavit

of Dennis Downey, D.D.S. was sufficient to create a material issue as to such breach;

and (4) the district court failed to consider the whole record. Plaintiff further argues

that the district court erred in granting summary judgment on her fraud and

misrepresentation claims against Defendants because there were genuine issues of

material fact, and because, again, the district court failed to consider the whole

record. Finally, Plaintiff argues that the district court erred in refusing to grant

Plaintiff's requests to audio-record all hearings. Unpersuaded by any of Plaintiff's

arguments, we affirm.

BACKGROUND

Undisputed Material Facts

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@3 Rule 1-056(D)(2) NMRA requires that the memorandum in opposition to a

facts as to which the party contends a genuine issue does exist. Each fact in dispute

shall be numbered, shall refer with particularity to those portions of the record upon

which the opposing party relies, and shall state the number of the moving party’s

fact that is disputed.” Rule 1-056(E) also requires that the response, “by affidavits

or as otherwise provided in this rule, must set forth specific facts showing that there

iS a genuine issue for trial.”

{33 Inher responses to Defendants’ two motions for summary judgment, Plaintiff

failed to comply with the requirements of Rule 1-056(D)(2) and (E), but instead

argued about the legal significance of the facts as she understood them, and attached

affidavits, without explaining how specific facts set out in the affidavits create a

genuine issue for trial. While we appreciate that Plaintiff, as a pro se litigant, has no

formal legal training, neither the district court nor this Court are required to sift

through Plaintiffs responses to attempt to discern which, if any, of the material facts

presented in Defendants’ motions are allegedly disputed by Plaintiff. Clayton v.

Trotter, 1990-NMCA-078, 4 12, 110 N.M. 369, 796 P.2d 262 (“[A] pro se litigant is

bound by all of the rules applicable to litigants represented by attorneys.”); see /n re

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Estate of Heeter, 1992-NMCA-032, ¥ 15, 113 N.M. 691, 831 P.2d 990 (holding that

“(t]his court will not search the record to find evidence to support an appellant’s

claims”). Rule 1-056(D)(2) provides that “[aJll material facts set forth in the

statement_of the movin

controverted.” See Valenzuela v. Snyder, 2014-NMCA-061, § 11, 326 P.3d 1120

(holding that, given the non-moving party’s noncompliance with Rule 1-056

requirements, the undisputed material facts _asserted_in_ the summary judgment

motion were appropriately deemed admitted by the district court). Accordingly, we,

like the district court, consider the following facts, properly set forth in Defendants’

motions, to be undisputed.

{4 — Plaintiffis alicensed dental hygienist, who was hired by Greg LoPour, D.D.S.,

in or around May 2011. As part of her employment, Plaintiff administered local

anesthesia to patients. On August 11, 2011, the New Mexico Board of Dental Health

Care’s Dental Hygienist Committee (Committee), sent Plaintiff a letter stating that

Plaintiffs licensing file “[does] not include any supporting documentation that [you

have] ever applied for or [have] ever been issued a Local Anesthesia Permit in New

Mexico.”! It further stated that, when the Committee met in July 2011, “the

Committee voted to refer Plaintiff's case to the Attorney General’s Office for the

issuance of a Notice of Contemplated Action (NCA) for the violation of’ NMSA

'For context, it appears from the amended complaint that Plaintiff had
requested copies of her licensing materials from the Committee, prompting the

Committee’s response.

1978, Section 61-SA-21(A)(5), (7) (2003, amended 2019);2 NMSA 1978, § 61-5A-

A(D) (2011):3 16.5.28(8)_ (9). (10) NMAC? and _ 16.5.30.10(B)(10) NMAC? “with
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proposed early resolution that [Plaintiff] accept and comply with a ‘[clease &

[djesist’ from administering local anesthesia until you are properly certified.” The

cited laws and regulations were attached to the letter

3 On August 18, 2011, Plaintiff emailed Defendants, who was already

representing Plaintiff in a separate real estate matter, explaining the situation with

the Board and indicating that she was “already certified,” but that she could not

locate a copy of the certificate. Plaintiff stated that she had sent the Board proof of

? Providing, in relevant part, that “the board and, as relates to dental hygienist

licensure, [C]ommittee may fine and may deny, revoke, suspend, stipulate or
otherwise limit any license or certificate .. . upon findings by the board or the
[C]ommittee that the licensee, certificate holder or applicant: ... (5) is guilty of

unprofessional conduct as defined by [this] rule; .. . (7) has violated any provisions
of the Dental Health Care Act or rule or relation of the board or, as relates to the

practice of dental hygiene, the [C]ommittee[.]”

Providing that “[i]n addition to performing dental hygiene as defined in
Subsection B of this section, dental hygienists who have met the criteria as the
committee shall establish and the board shall ratify may administer local anesthesia

under indirect supervision of a dentist.”
‘Providing, in relevant part, that “[l]ocal anesthesia administration is not
included as a function of dental hygiene licensure; it may only be performed by

dental hygienists who have been separately certified by the [C]ommittee to perform
the expanded function.” Regulation 16.5.28.9 NMAC sets forth the necessary
qualifications and documentation for certification by curriculum or exam, and

Regulation 16.5.28.10 NMAC sets forth the necessary qualifications and
documentation for certification by credentials.
Defining “[uJnprofessional conduct” as including, but not limited to

“injudicious administration of any drug or medicine[. |”

the requisite coursework and proof of her licensure to administer anesthesia in other

everything the Board Administrator asked her to do, and lamented that “I can’t work

for my boss because of this clerical error.” Plaintiff stated that this was “distressing

to say the least’? and asked Defendants “Do I need an attorney for this?’’ Defendants

responded to Plaintiffs email on August 19, 2011, stating: “To answer your

question, you must have a lawyer take care of this.” Defendants noted that Plaintiff

still had a “few thousand dollars in the trust account” from the real estate matter, and

offered that “[i]f it is [ok] with you, I will use that money to pay the fees in this

matter.” Defendant asked Plaintiff if she was currently working, and advised that

“t]he [BJoard has not yet issued a ‘[c]ease and [d]esist’ so you should be able to

work.” He indicated that he would get a letter out to the Board that day.

6} Plaintiff replied, “Great, that will help.” Plaintiff also explained in further

detail her background, and how she believed she had previously become certified in

New Mexico. Defendant responded, and asked: “Do I understand that you can take

a short class and get the anesthesia certificate? That might be the path of least

resistance to pursue in the meantime.” Plaintiff replied, “Another class?” and noted

that she believed the class was not being offered for six months. Plaintiff stated: “I'll

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do it 1f Ihave to, BUT they should have some accountability for the error and hassle

I am having to go through. Also the loss of income.”

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tj Defendants sent two letters to the Board on August 19, 2011. The first one

im was representing Plaintif€. noting that no

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and [d]esist’” order was included in the Committee’s letter, and that Plaintiff had

heard nothing from the Attorney General’s Office. Defendants cited Plaintiff's

current licensure as a dental hygienist, stating that “[uJntil and unless the Board takes

proper administrative action to suspend her license she will continue to practice.

[Plaintiff is] not in a financial position to stop working.” He further noted that

Plaintiff previously submitted all required paperwork relating to her anesthesia

certificate, and suggested that the Board search for her records under her former last

name. The second letter attached copies of documents (also submitted by Plaintiff

in an earlier letter) demonstrating that Plaintiff had previously applied for the

requisite credentials for the administration of anesthesia. Plaintiff continued

searching for her anesthesia certificate, but could not find it.

33 On January 13, 2012, Defendants spoke with Assistant Attorney General

Gloria Lucero, and sent her an email attaching Plaintiffs licensing file, including

copies of Plaintiff's licenses to administer anesthesia in California, Colorado, and

Utah and proof that she applied for the anesthesia certificate in New Mexico. He

asked that Ms. Lucero discuss Plaintiffs situation with the Board staff, to see if they

might avoid a “compliance action,” and get back to him.

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(93 Meanwhile, also on January 13, 2012, Plaintiff notified Defendants via email

Plaintiff completed the course, and the Western Regional Examining Board (WREB)

licensing examination, and was notified she passed on March 2, 2012. Around this

same time on February 28, 2012, Defendants terminated their representation of

Plaintiff, because Plaintiff accused Defendants of having a conflict of interest. In the

letter of termination, Defendants further stated that he considered the legal matters

in which he was representing her to be complete, and that “lilt appears that the

Dental Board will not take licensing action against you, based, at least in part, on my

correspondence with the attorney for the Dental Board. I am glad that you chose to

take the classes necessary to avoid a costly dispute with the Dental Board.”

Defendants noted that, since the costs in the real estate matter totaled $9,775.10, only

$224.90 remained in Plaintiffs trust account with the firm. Defendants told Plaintiff

that he would accept that amount as payment in full on the Dental Board matter,

“although it is much less than would be owed under my typical hourly rate.”

Defendants and his firm received no more than $224.90 in payment for services on

the Dental Board matter. No NCA action was issued against Plaintiff. On February

12, 2013, Plaintiff was notified that the Board had granted her application for a local

anesthesia permit.

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410} Following the commencement of litigation in this case (and in support of their

summary judgment motions) Defendants filed the affidavit of Mary Emily (“Molly”)

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Schmidt-Nowara, Esq., who offered expert opinions on Defendants’ professional

conduct in Plaintiff's Dental Board matter. Ms. Nowara, an attorney who regularly

represents individuals and entities in an array of licensing Board proceedings in New

Mexico, stated in her affidavit that, in her opinion, Defendants’ handling of

Plaintiffs Board case from August 2011 to February 2012 was consistent with the

standard of care for lawyers practicing in New Mexico at the time. Specifically, she

stated that it was appropriate for Defendants to advise Plaintiff to retain counsel in

response to the August 11, 2011 letter from the Board, because, in her extensive

experience, licensees have a much greater chance of success in disciplinary matters

if they are represented by counsel, and boards are accustomed to such representation.

Ms. Nowara further opined that Defendants’ August 18, 2011, communication with

the Board was timely, appropriate, informative, professional, represented good

advocacy, and was addressed to the issues presented. Ms. Nowara opined that

Defendants’ advice was correct, and not tantamount to advising Plaintiff to break

the law. According to Ms. Nowara, Defendants’ reliance on Plaintiffs

representations about her certification was reasonable, particularly given that

licensees have their own professional and ethical duties and are obligated to

understand the requirements of licensure. Moreover, 1t was reasonable for

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Defendants to interpret the Board’s August 11, 2011, letter as one which did not

constitute a “cease and desist” request in itsel

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proposed settlement, including a cease and desist provision, would be forthcoming.

Ms. Nowara noted that she did not see Defendants’ actions as neglect of Plaintiffs

case, but rather that, by not demanding that Plaintiff's matter be placed on the Dental

Board’s agenda, he provided Plaintiff with the opportunity to either locate or replace

her certification while avoiding the issuance of an NCA. Of further significance to

Ms. Nowara was the fact that Defendants advised Plaintiff as early as September

2011 that she should consider retaking the necessary coursework to expedite the

certification process and address the Board’s concerns in a proactive way, but that

Plaintiff did not pursue this option until January 2012. Finally, Ms. Nowara opined

that Defendants did not abandon Plaintiff or prejudice her case before the Board by

terminating their representation in February 2012, because no NCA had been issued

and there was no pending disciplinary action.

Procedural History

4113 Plaintiff, appearing pro se, initiated this action against Defendants on

December 15, 2014. Plaintiffs original complaint included claims for breach of

fiduciary duty, ineffective assistance of counsel, negligence, intentional misconduct,

non-performance, breach of contract, abandonment, and malpractice. Defendants

filed a motion to dismiss Plaintiff's claims of ineffective assistance of counsel,

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intentional misconduct, non-performance and abandonment, as failing to state

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cognizable claims. On Jun

judgment, seeking dismissal of Plaintiff's malpractice, breach of contract and breach

of fiduciary duty claims for lack of causation. On the date of the hearing on the

foregoing motions, Plaintiff filed a motion for leave to amend the complaint. The

district court granted Defendants’ motion to dismiss. However, on February 17,

2016, the court denied Defendants’ motion for summary judgment, finding that

Plaintiff's response was “sufficient to raise questions of fact as to whether

Defendants’ representation of Plaintiff before the Dental Board caused Plaintiff any

damage as alleged.” The court also granted Plaintiff leave to file the proposed

amended complaint with claims for breach of contract, intentional misrepresentation

and fraud, negligent misrepresentation, and unfair and deceptive trade practices and

malpractice. Plaintiff filed her amended complaint on March 16, 2016.

412} A scheduling order was entered on November 10, 2016, setting trial for

October 2017, and establishing a number of deadlines. According to the scheduling

order, Plaintiff's expert witness disclosures were due January 13, 2017, and

Defendants’ were due on February 13, 2017. Consistent with Rule 1-026(B)(6)(a)

NMRA, disclosures were to include, among other things, the subject matter on which

the expert is expected to testify, the substance of the facts and opinions to which the

expert is expected to testify, and a summary of the grounds for each opinion.

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Discovery was scheduled to conclude on August 16, 2017, and dispositive motions

were required to be filed by August 30,2017. The conclusion of the Scheduling

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Order states that “[a] motion and order are required for any modification of this

[o|rder.”

413} Plaintiff filed an expert disclosure on January 9, 2017, listing five experts

including (as relevant here) Scott Fuqua, to testify regarding “procedures at the [New

Mexico| R[egulation] L[icensing] D[epartment]” (RLD), “the standard of care for

an attorney handling a licensing dispute, licensing law, specific matters related to

[Plaintiff's] case and [Defendants] handling of the license matter.” Plaintiff also

disclosed Mary Kay Root, of the RLD, Boards and Commissions Division, to testify

“about [Defendants’] actions on behalf of [Plaintiff] during her licensing situation”

and “other matters related to licensing disputes.” Plaintiff provided the addresses for

these individuals, but no other information.

4; On January 31, 2017, Plaintiff filed an amended disclosure, providing no new

information regarding Mr. Fuqua, except that he was “reconsidering his willingness

to be [an] expert witness,” and that he had been an expert witness before. Plaintiff

also stated that she would “supplement information at a later date regarding his

qualifications.” Ms. Root was removed from the disclosure. Defendants filed their

expert witness disclosure on February 13, 2017, identifying Ms. Nowara as an expert

who would opine on “whether Defendants’ representation of Plaintiff in connection

with Plaintiff[’s] letter from the... Dental Board . .. was consistent with the standard

a CV and an affidavit setting forth Ms. Nowara’s opinions and the facts and grounds

in support.

as} On June 20, 2017, Defendants filed two motions: one for summary judgment

on Plaintiff's malpractice claims and negligent misrepresentation claim (Counts 1,

3, and 5), and one for summary judgment on Plaintiff's fraud and UPA claims

(Counts 2 and 4). Defendants argued that Plaintiff lacked any expert opinion

evidence that Defendants’ conduct breached the standard of care and was therefore

unable to prove one of the elements of her professional negligence counts (Counts 1

and 5). Defendants further argued that Plaintiff's fraud and misrepresentation claims

fail, because the undisputed facts show no misrepresentations to Plaintiff, and/or

show no intent to deceive Plaintiff. On July 5, 2017, Plaintiff filed opposition briefs,

not specifically controverting any of Defendants’ list of undisputed material facts

(as discussed hereinabove), but attaching affidavits from Plaintiff and several lay

witnesses, and a dentist, Dr. Downey.

{16} Simultaneously, Plaintiff filed a second amended expert witness list, adding

(again) Ms. Root, and removing Mr. Fuqua. This time, Plaintiff indicated (for the

first time) that she intended to offer Ms. Root’s testimony at the summary judgment

hearing, stating that “[Ms. Root] 1s expected to testify that [Defendants] breached

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[their] duty to [Plaintiff] by failing to convey to [Plaintiff] or otherwise pursue the

method of resolution which oot] informed him of.° [Ms. Root] is also

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expected to testify that [Defendants] hindered the resolution of [Plaintiff's] case, and

that [Plaintiff] would have been better off if [Defendants] had never represented

[her.]” Plaintiff added that “I cannot say with any exactness what the full scope of

[Ms. Root’s] testimony will be[.]” Defendants filed a motion to strike Plaintiffs

expert witness lists and to exclude the expert testimony of Ms. Root, citing Plaintiff's

willful failure to follow the requirements of the scheduling order or to request a

modification of the order, and her proffer of undisclosed expert testimony “on the

eve of the hearing” on Defendants’ motions. Defendants argued that the district court

should grant the motions both pursuant to its inherent authority, and as a discovery

sanction. Plaintiff filed a response arguing that the district court should permit Ms.

Root to testify because Plaintiff's expert disclosures were adequate, Defendants

would not be prejudiced by Ms. Root’s testimony, and the August 3, 2017 hearing,

was before the close of discovery. On July 18, 2017, Plaintiff filed a third amended

expert witness list, this time attaching Ms. Root’s CV.

Plaintiff had also disclosed Ms. Root as a fact witness in her capacity as the

acting director of the Boards and Commissions Division, because Ms. Root had at
some point spoken with Defendant Cadigan, and had advised him that anyone denied
a license or permit could request to be placed on the agenda of a licensing

Committee’s next meeting.

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7; At the summary judgment hearing on August 3, 2017, with respect to

request was untimely, because Plaintiff failed to include, in her written responses to

the motions, an affidavit setting forth the opinions of Ms. Root, citing Rule 1-056(D)

and (E). The court also found that Plaintiff failed to timely and fully disclose Ms

Root as an expert witness as required in the scheduling order and in response to

Defendants’ discovery requests. For the same reasons, the district court did not

consider the affidavit of Ms. Root. The district court found that Plaintiff failed to

controvert, with affidavits or other admissible evidence, the undisputed material

facts set forth in Defendants’ motions. The court therefore deemed those facts

admitted, granted Defendants’ motions, and dismissed Plaintiff's complaint with

prejudice. This appeal followed.

13
14

DISCUSSION

Standard of Review

183 We first consider the district court’s exclusion of Plaintiff's proffered expert

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Gomez, 1991-NMCA-066, § 20, 116 N.M. 626, 866 P.2d 354 (reviewing under an

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abuse of discretion standard the district court’s exclusion of oral testimony and

see Allred v. N.M. Dep’t of Transportation, 2017-NMCA-019, 4 51, 388 P.3d 998

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(holding that Rule 1-037(B) NMRA bestows on the district court authority to grant

and enforce _sanctions_for discovery violations

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discretion the district court’s sanction excluding of the testimony of an expert

witness who had not been properly disclosed). An abuse of discretion occurs when

the trial court’s ruling is against the facts, logic, and circumstances of the case or is

untenable or unjustified by reason. See State v. Rojo, 1999-NMSC-001, ¥ 41, 126

N.M. 438, 971 P.2d 829.

4193 Next, we review de novo the district court’s grant of summary judgment in

favor of Defendants. See Self v. United Parcel Serv., Inc., 1998-NMSC-046, § 6, 126

N.M. 396, 970 P.2d 582. We ordinarily review the entire record “in [the] light most

favorable to the party opposing summary judgment and draw all reasonable

inferences in support of a trial on the merits.” Romero v. Philip Morris Inc., 2010-

NMSC-035, 9 7, 148 N.M. 713, 242 P.3d 280. “However, if no material issues of

fact are in dispute and an appeal presents only a question of law, we apply de novo

review and are not required to view the appeal in the light most favorable to the party

Opposing summary judgment.” City of Albuquerque v. BPLW Architects & Eng’rs,

Inc., 2009-NMCA-081, 9 7, 146 N.M. 717, 213 P.3d 1146.

0} “Summary judgment is appropriate when a defendant negates an essential

element of the plaintiff's case by demonstrating the absence of an issue of [material]

fact regarding that element.” Mayfield Smithson Enters. v. Com-Quip, Inc., 1995-

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NMSC-034, § 22, 120 N.M. 9, 896 P.2d 1156. “A defendant seeking summary

upon which the plaintiff's claims are grounded.” Blauwkamp v. Univ. of N.M. Hosp.,

1992-NMCA-048, ¥ 14, 114 N.M. 228, 836 P.2d 1249. Once the defendant has made

a prima facie case, the non-movant has the burden of establishing the existence of a

genuine issue of material fact relevant to any element negated by the movant. See

Bartlett v. Mirabal, 2000-NMCA-036, § 17, 128 N.M. 830, 999 P.2d 1062; see also

Romero, 2010-NMSC-035, 4 10. “[S]ummary judgment should not be granted when

material issues of fact remain or when the facts are insufficiently developed for

determination of the central issues involved.” Bartlett, 2000-NMCA-036, § 17

(internal quotation marks and citation omitted). However, the non-movant may not

rely on allegations or speculation, but must come forward with admissible evidence

demonstrating a genuine issue requiring trial and demonstrating that the facts

allegedly in dispute are material to the claims at issue. Rule 1-056(E); Romero, 2010-

NMSC-035, § 11 (holding that materiality is determined by the governing

substantive law, such that a fact is material if it is necessary to give rise to a claim).

In short, “the party opposing the summary judgment motion must adduce evidence

to justify a trial on the issues.” Romero, 2010-NMSC-035, 4 10 (alteration, internal

quotation marks, and citation omitted).

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A. The District Court’s Exclusion of Plaintiffs Proffered Expert Witness
Testimony and Affidavit Was Not Improper

1. The District Court Did Not Abuse Its Discretion

1 Plaintiff_ argues that the district_court_erred_in refusing to_allow Ms. Root_to

testify in the summary judgment hearing, because Rule 1-043(C) NMRA, permits

evidence to be presented through oral testimony in motion hearings, and thus “the

[d]istrict [c]ourt’s conclusion that Rule 1-056 prohibited oral testimony was

erroneous.” When a motion for summary judgment is made and supported by

affidavits and other admissible evidence, “an adverse party may not rest upon the

mere allegations or denials of his pleading, but his response, by affidavits or as

otherwise provided in this rule, must set forth specific facts showing that there is a

genuine issue for trial.” Rule 1-056(E). Moreover, “[b]ecause Rule 1-056 is silent

conceming the use of oral testimony to support or oppose motions for summary

judgment... it is clear that such practice is to be used, if at all, only upon a proper

showing that the party seeking to offer such testimony has first exercised due

diligence in attempting to secure affidavits or deposition testimony . . . and that for

reasons beyond his control has been unable to obtain [them].” Marquez, 1991-

NMCA-060, 4 24. [hus, although Rule 1-045(C) authorizes the use of oral testimony

during hearings on motions, generally, “the court should use oral testimony on a

summary judgment motion sparingly and with great care.” Marquez, 1991-NMCA-

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066, J 23 (citing and quoting 10A Charles Alan Wright, Arthur R. Miller & Mary

Kay Kane, Federal Practice and Procedure § 2723 (4th 2019)),

22} Here, the district court excluded the testimony of Ms. Root in the summary

judgment hearing, reasoning that Rule 1-056(E) obligated Plaintiff to proffer Ms.

Root’s affidavit in opposition to Defendants’ motions, which Plaintiff had failed to

do. Plaintiff made no showing that she exercised due diligence to obtain an affidavit

from Ms. Root, but was unable, for reasons beyond Plaintiff's control. To the

contrary, the district court found that Plaintiff disregarded the requirements of the

scheduling order, and failed to adequately respond to Defendants’ discovery requests

and requests to depose Ms. Root. Accordingly, the district court did not abuse its

discretion in excluding Ms. Root’s testimony. See Marquez, 1991-NMCA-066, § 24.

3} Plaintiff next argues that the district court erred in refusing to admit Ms.

Root’s affidavit. Specifically, Plaintiff quotes Richards v. Upjohn Co., 1980-

NMCA-062, 4 22, 95 N.M. 675, 625 P.2d 1192, for the proposition that “an affidavit

submitted [on] the day of the summary judgment hearing should be allowed, unless

the other party needs time to rebut the information contained in the affidavit, and

there is some reason that the hearing cannot be postponed.” Similarly, in Marquez,

we held that “[i]n the absence of a showing of prejudice” the trial court should have

considered two affidavits filed on the day of the summary judgment hearing. 1991-

NMCA-066, § 25. But in Marquez, the defendants “did not argue that they were

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prejudiced by the matters contained in the affidavits tendered on the day of the

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Plaintiff did not comply with the scheduling order or provide a substantive disclosure

of Ms. Root’s proffered expert opinions, and the bases for those opinions, prior to

the date of the summary judgment hearing. Plaintiff spends a great deal of her brief

arguing that Defendants are not prejudiced by the belated proffer of Ms. Root’s

affidavit, as shown by Defendants’ failure to seek adjournment of the summary

judement hearing to a later date, and because discovery was not scheduled to close

until the end of August 2011. But consideration of an affidavit from Ms. Root on the

date of the summary judgment hearing would have precluded Defendants from

responding to or rebutting Ms. Root’s testimony without significantly delaying the

resolution of the motions. Indeed, Defendants would have received the substance of

Ms. Root’s opinions for the first time more than two years after Plaintiff filed her

complaint, more than seven months after the expert disclosure deadline set forth in

the scheduling order, and only two months before trial. The prejudice posed to

Defendants in these circumstances 1s apparent, and the district court did not abuse

its discretion in excluding Ms. Root’s affidavit from consideration on summary

judgment.

4; For similar reasons, the district court’s exclusion of Ms. Root’s testimony and

affidavit was also an appropriate discovery sanction. Rule 1-026(B)(6)(a) sets forth

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the expert discovery to which parties are entitled, including, inter alia, discovery of

“the substance of the facts

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a summary of the grounds for each opinion|[,]” and the qualifications of the expert

to give such opinions. These requirements were also set forth in the district court’s

scheduling order, entered November 10, 2016. Pursuant to that order, Plaintiff was

to disclose the required information regarding any expert expected to testify at trial,

by January 13, 2017. “A scheduling order shall not be modified except by order of

the court upon a showing of good cause.” Rule 1-016(B) NMRA.

5} Plaintiff argues that she disclosed Ms. Root “at the proper time[,]” but

Plaintiff's initial disclosure plainly fails to meet the requirements of Rule 1-

026(B)(6)(a) and the scheduling order, as it does not detail the substance of Ms.

Root’s expected opinion testimony or the basis for her opinion, nor does it provide

her qualifications or any other information. Plaintiffs first amended expert

disclosure removed Ms. Root entirely. Plaintiff did not provide substantive

responses to defense counsel’s expert-related discovery requests, but only referred

to the prior disclosures. When she was asked, in January and February 2017, to

supplement her disclosures, and to provide dates on which any experts would be

available for deposition, she did not do so. Plaintiff's second and third amended

expert disclosures were not filed until July 2017, after Defendants” motions for

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summary judgment, and these still did not adequately set forth the substance of Ms.

.oot’s expected testimon

26} “We will not interfere with the [district] court’s enforcement of pretrial

deadlines. Adherence to such scheduling orders [is] critical in maintaining the

integrity of judicial proceedings.” Reaves v. Bergsrud, 1999-NMCA-075, 4 28, 127

N.M. 446, 982 P.2d 497 (internal quotation marks and citation omitted). Moreover,

Rule 1-037(B)(2)(b) provides that “if'a party fails to obey an order under Rule 1-026

..., the court in which the action is pending may .. . prohibit[] that party from

introducing designated matters in evidence.” Accordingly, we have concluded that

failure to comply with expert disclosure requirements is “sufficient grounds to

exclude expert witness testimony.” A//red, 2017-NMCA-019, § 47. Plaintiff, who is

“bound by all of the rules applicable to litigants represented by attorneys|,|’’ Clayton,

1990-NMCA-078, § 12, was on notice of her noncompliance with the court’s

scheduling order and expert disclosure requirements for approximately six (6)

months prior to the August 11th hearing. Six weeks before that hearing, the district

court also admonished Plaintiff that a lack of expert testimony would likely be fatal

to Plaintiff's claims, and reminded Plaintiff that she was in violation of the court’s

scheduling order with respect to expert disclosures. Plaintiff did not seek

modification of the scheduling order, and did not attempt to submit an affidavit from

Ms. Root until the date of the summary judgment hearing. Thus, the district court’s

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exclusion of Ms. Root’s affidavit was not “unreasonably severe,” as Plaintiff argues,

but _well_within the court’s discretion.

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2. Plaintiff's Due Process Claim on Exclusion Was Not Preserved

a7 Plaintiff argues that the district court denied Plaintiff her rights to procedural

due process and trial by jury under Article II, Sections 12 and 18 of the New Mexico

Constitution, by ruling on Defendants’ motion to strike and exclude Plaintiffs

experts in the summary judgment hearing, without notice to Plaintiff, and after

informing the parties (at the outset of the summary judgment hearing) that the court

would not be ruling on the motion. But Plaintiff did not preserve this argument. The

record citations to which Plaintiff directs us are her statements to the district court

in a hearing some six weeks prior to the summary judgment hearing, before

Defendants’ motion to strike and exclude Plaintiff's experts was even filed. “[O]n

appeal, the party must specifically point out where, in the record, the party invoked

the court’s ruling on the issue. Absent that citation to the record or any obvious

preservation, we will not consider the issue.” Crutchfield v. N.M. Dep’t of Taxation

& Revenue, 2005-NMCA-022, ¢ 14, 137 N.M. 26, 106 P.3d 1273.

B. The District Court’s Grant of Summary Judgment on Plaintiff's

Malpractice Claims Was Correct

1. The Law of the Case Doctrine Did Not Preclude Summary Judgment in

Favor of Defendants

238} Plaintiff argues that the district court’s denial of Defendants’ first motion for
summary judgment became the “law of the case,” such that the district court should
not have granted Defendants’ subsequent motion for summary judgment. Plaintiff
misunderstands the law of the case doctrine. |
{29} The law of the case doctrine prevents relitigation of issues, such that “a
decision on an issue of law made at one stage of a case becomes a binding precedent
in successive stages of the same litigation.” Cordova v. Larsen, 2004-NMCA-087,
4 10, 136 N.M. 87, 94 P.3d 830 (internal quotation marks and citation omitted). The
doctrine “is a matter of precedent and policy; it is a determination that, in the
interests of the parties and judicial economy, once a particular issue in a case is
settled it should remain settled.” Trujillo v. City of Albuquerque, 1998-NMSC-031,
4 40, 125 N.M. 721, 965 P.2d 305 (internal quotation marks and citation omitted).
The doctrine is “discretionary and flexible.” Jd. 7 41. “Whether law of the case
applies, as well as how it applies, are questions of law subject to de novo review.”
State ex rel. King v. UU Bar Ranch Ltd. P’ship, 2009-NMSC-010, § 20, 145 N.M.
769, 205 P.3d 816.

30} The elements of a cause of action for legal malpractice are discrete, and
require the plaintiff to prove each element, including: “(1) the employment of the
defendant attorney; (2) the defendant attorney’s neglect of a reasonable duty; and

(3) the negligence resulted in and was the proximate cause of loss to the [plaintiff].”

Encinias v. Whitener Law Firm, P.A., 2013-NMSC-045, § 8, 310 P.3d 611 (internal

[so UJL 13-2401 NMRA. A defendant

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quotation marks and citation omitted);

who moves for summary judgment has only to negate one of the essential elements

of the claim. Blauwkamp, 1992-NMCA-048, 4 14. Accordingly, a litigant may

address or the district court may decide the element of causation, without addressing

or deciding whether the defendant breached any duty. See, e.g., Andrews v. Saylor,

2003-NMCA-132, 4 19, 134 N.M. 545, 80 P.3d 482 (noting that the defendants’

“motion for summary judgment was limited to the issue of proximate [causation]”’);

see also Paez v. Burlington N. Santa Fe Ry., 2015-NMCA-112, 9] 9-26, 362 P.3d

116 (affirming the district court’s grant of summary judgment in favor of the

defendants because no reasonable jury could find that the allegedly negligent

conduct caused the plaintiffs’ damages).

313, Here, Defendants’ first motion for summary judgment sought to negate only

the element of causation. The district court denied the motion by way of order dated

February 17, 2016, reasoning that Plaintiffs response to the motion had raised

questions of fact “as to whether Defendants’ representation of Plaintiff before the

Dental Board caused Plaintiff any damage as alleged.” Subsequently, Plaintiff

amended her complaint, and the parties engaged in discovery. In June 2017

Defendants again filed motions for summary judgment, arguing that the undisputed

evidence showed no breach of the standard of care. Because the district court’s 2016

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decision addressed the element of causation, it was not the law of the case as to the

te the element of breach of duty. Even if this were

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not so, the 2016 decision preceded discovery. Thus, in 2016 the district court did not

finally decide the question of causation as a matter of law, but held that in the early

stages of litigation, there were material disputes of fact foreclosing summary

judgment in favor of Defendants. Accordingly, the 2016 decision was not the law of

the case as to the 2017 decision. See Cordova, 2004-NMCA-087, § 10.

2. Plaintiff Required Legal Expert Testimony to Show a Material Dispute

of Fact on the Element of Breach of Duty

{32} Plaintiff argues that summary judgment in favor of Defendants on Plaintiff's

malpractice claims was improper, because legal expert opinion evidence was not

necessary to demonstrate a breach of the standard of care in this case, where

(according to Plaintiff) such breaches fall within the common knowledge of lay

jurors. We disagree.

33} Plaintiff's breach of contract and malpractice claims (Counts 1 and 5) both

require a showing that Defendants breached the standard of care, “measured by the

duty to apply the knowledge, care, and skill of reasonably well-qualified

professionals practicing under similar circumstances.” Adobe Masters, Inc. Vv.

Downey, 1994-NMSC-101, 93, 118 N.M. 547, 883 P.2d 133. In such cases, breach

of the standard of care “must be proved by expert testimony un/ess the case is one

N
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where exceptional circumstances within the common experience or knowledge of

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the layman are present.” /d. § 9; Buke, LLC v. Cross Country Auto Sales, LLC, 2014-

NMCA-078, 4 51, 331 P.3d 942 (noting that “Te|xpert testimony_is generally

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necessary to explain the applicable standard of conduct, and a plaintiffs failure to

present expert testimony to support a professional malpractice claim is usually

fatal’’). In_ other words, expert testimony is essential unless negligence “can be

determined by resort to common knowledge ordinarily possessed by an average

person.” Pharmaseal Labs., Inc. v. Goffe, 1977-NMSC-071, 9 17, 90 N.M. 753, 568

P.2d 589. Courts in other states have found such exceptional circumstances where

an attorney missed deadlines or stole client funds. See Meyer v. Dygert, 156 F. Supp.

2d 1081, 1091 (D. Minn. 2001). Similarly, expert testimony was deemed

unnecessary where an attorney’s breach of the standard of care was “egregious and

obvious,” such as failing to “appear in court on his client’s behalf,” to “notify a client

of [the] termination of employment,” to “inform a client of a settlement offer,” to

“follow a client’s instructions and adequately insulate it from creditors,” or to “file

an action within the statute of limitations.” Wastvedt v. Vaaler, 430 N.W.2d 561,

565 (N.D. 1988) (citations omitted). On the other hand, expert testimony is required

where an attorney’s representation involves, for instance, trial tactics, or specialized

knowledge, since “a jury cannot rationally apply negligence principles to

professional conduct without evidence of what a reasonable attorney would have

done under the circumstances and the jury may not be permitted to speculate about

what the professional custom may be.” /d. at 566; see Sanders v. Smith, 1972-

NMCA-016, 4-16, 83. N.M. 706, 496 P.2d 1102 (holdin

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not have the experience, knowledge and wisdom to opinionate on the complexities

of trial practice”); see also Meller v. Bartlett, 580 A.2d 484, 485 (Vt. 1990) (holding

that “claims of failure to account, conflict of interest, and unauthorized_hiring of

another attorney should be judged against professional standards verified by an

expert”).

(343 Here, Plaintiff claims that expert testimony was unnecessary because a lay

person could conclude that Defendants committed malpractice by effectively

causing her to violate the law by advising Plaintiff that she could continue to work

even after the Board’s issuance of the August 11, 2011 letter. The undisputed

material facts do not support this assertion. Plaintiff consistently maintained that, at

the time the Committee referred Plaintiff to the Attorney General’s Office, she was

certified to administer anesthesia in New Mexico but was unable to find proof of her

certification. Plaintiff referred to the Board’s lack of a record of her certification as

a “clerical error.” Plaintiff produced documentation proving that she completed

anesthesia coursework, was licensed to perform anesthesia in other states, and had

applied for certification in New Mexico. Thus, Defendants advised Plaintiff that she

could continue working while they tried to resolve the issue of proving her

certification—they did not advise her to work uncertified. According to expert

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witness Ms. Nowara, Defendants’ reliance on Plaintiff's representations about her

WEEN GEESE

professional and ethical duties and is obligated to understand the requirements of

licensure. Ms. Nowara further opined that it was reasonable for Defendants to

understand that the August 11, 2011, letter was not a “cease and desist” request, in

and of itself, but a notification that a proposed settlement including compliance with

such an order would be forthcoming. There is no evidence that, after the August 11,

2011 letter, until the termination of Defendants’ representation of Plaintiff, any

action was taken with respect to Plaintiff's license, by the Committee or the Attorney

General’s Office. Thus, although Defendants’ advice that Plaintiff could continue

working may not have been the most prudent advice, we do not think that a lay

person could conclude that it amounted to a directive that Plaintiff should violate

Section 61-5A-4(D), or 16.5.28.8.10 NMAC (containing certification requirements

for local anesthesia administration).

435} Plaintiff asserts that, even if Defendants did not advise her to violate the law,

it 1s obvious that Defendants should have warned Plaintiff about the potential

consequences of continuing to administer anesthesia—including the possible

revocation of Plaintiff's license. But the August 11, 2011, letter from the Committee

contained the warning that Plaintiff was being referred to the Attorney General’s

Office for issuance of a NCA for violation of the laws and regulations governing

certification, including Section 61-5A-21(A)(7), which provides that the Committee

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spend, stipulate or otherwise limit any license or certificate.

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. upon findings by the board or the committee that the licensee, certificate holder of

applicant . . . has violated any provisions of the Dental Health Care Act or rule or

regulation of the board or, as relates to the practice of dental hygiene, the

committee.” In other words, the potential impact on Plaintiff's license was apparent

from the letter that led Plaintiff to seek counsel from Defendants in the first place.

Plaintiff and Defendants’ email exchanges also imply that Plaintiff understood the

seriousness of the potential consequences, should she be unable to prove her

certification status; accordingly, the parties discussed Plaintiff re-taking the requisite

certification course and examination, which she did. For these reasons, the

reasonableness of Defendants’ failure to overtly advise Plaintiff that her license

could be revoked, should she be unable to prove her certification status, required

evidence of what a reasonable attorney would have done under the circumstances—

evidence in the form of the testimony of lawyers. Sanders, 1972-NMCA-016, ¥ 14.

36} Plaintiff further argues that a lay person would understand that Defendants

should not have “sat idly by and did nothing as Plaintiff lost the value of her case.”

See George v. Caton, 1979-NMCA-028, 9 40, 93 N.M. 370, 600 P.2d 822. But

George was “limited to the failure of defendants .. . to commence an action [on

behalf of plaintiff] within the statutory period of limitations.” /d. § 33. In that case,

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we held that “[iJt does not require expert testimony to establish the negligence of an

attorney who is ignorant of the applicable statute_of limitations or who sits idly by

Pow EEE YE a Gi ae DE GEN GARE OE te FO AG ro a

and causes the client to lose the value of his claim for relief.” /d. 4 40. Plaintiff argues

that, here, if Defendants had not simply advised her to “sit tight,” and had instead

advised Plaintiff to obtain reciprocal certification (through reactivating her

certification in another state), Plaintiff could have obtained a new certification in

New Mexico within six to eight weeks, and would not have lost her job, through

which she had been earning $70,000 per year. Setting aside that many of the

underpinnings for this argument cannot be gleaned from the undisputed factual

record, this is precisely the sort of issue that requires expert testimony from a lawyer.

Defendants advocated for Plaintiff through correspondence with the Committee and

the Attorney General’s Office, and advised Plaintiff as early as September 2011 that

becoming recertified in New Mexico through retaking the relevant course and exam

may be the “path of least resistance” toward resolving her need for proof of

certification. Furthermore, Defendants stated in the affidavit that it was a strategic

choice on his part not to request that Plaintiff's matter be placed on the Committee’s

agenda. According to Ms. Nowara, Defendants’ advice in this regard was sound, as

it allowed Plaintiff the opportunity to either locate or replace her certification while

avoiding the issuance of an NCA. The practice of law “is not an exact science[;]”

accordingly, “a lawyer is not liable for every mistake” or less favorable decision in

the practice of law. /d. 7 39. A lay person would require guidance in order to weigh

the_reasonableness_of Defendants’ strategy and_counsel_in light of Plaintiff's

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contention that Defendants should have instead counseled her to reactivate a license

in another state and seek reciprocity.’

37; For all these reasons, we conclude that expert testimony was required to show

a material dispute of fact on Plaintiff's malpractice claims, Defendants having set

forth facts showing no breach of the standard of care, particularly here, where

Defendants negated the element of breach through an affidavit from a legal expert,

Ms. Nowara. These facts are (as we have discussed) deemed admitted. Rule 1-

056(D)(2). Moreover, even if Dr. Downey’s affidavit (attached to Plaintiffs

response) had been properly presented, we reject Plaintiff's final contention—that

Dr. Downey’s affidavit constituted an “expert opinion” sufficient to create a material

issue of fact as to breach of the standard of care applicable to an attorney.

38; Plaintiff argues that, because dentists regulate the Dental Board, they are “as

competent” as a lawyer would be to testify regarding professional standard of care

Plaintiff also argues, on appeal, that Defendants ought to have requested a
hearing from the Board under NMSA 1978, Section 61-1-4(D), (E) (2003), but she

did not raise this argument below. We do not address arguments raised for the first
time on appeal. Benz v. Town Ctr. Land, LLC, 2013-NMCA-111, ¥ 24, 314 P.3d 688
(holding that, in general, an issue is not preserved unless the appellant “fairly

invoked a ruling of the trial court on the same grounds argued in the appellate court”
(internal quotation marks and citation omitted)). Moreover, these subsections appear
to apply only where an NCA was issued—and there is no evidence of such issuance

here.

in proceedings before the Board. Specifically, she asserts that dentists, in the context

of Board proceedings, have the “knowledge and wisdom” to provide opinions_on

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professional practice before the Board. See Sanders, 1972-NMCA-016, 4 16.

Proceedings before the Dental Board are administrative proceedings in which

licensees are entitled to procedural protections and representation by an attorney or

another licensed member of their profession (or both). See NMSA 1978, § 61-1-8

(1981). But the fact that licensed members of the profession may also assist a

licensee in proceedings before administrative boards does not render them experts

on /egal malpractice in such proceedings. “Expert testimony in claims of legal

malpractice means testimony of lawyers.” Sanders, 1972-NMCA-016, 414. A

lawyer and a dentist do not have the same training, education, experience, or

professional requirements, and they bring to bear different areas of expertise in

assisting a licensee before the Board. For instance, a dentist would not be

knowledgeable about the issuance of subpoena, but would be able to assist a licensee

in understanding oral health care regimens for patients. Therefore, although a dentist

holds certain knowledge about requirements for professionals appearing before the

Dental Board, a dentist is not qualified to opine about the standard of care for a

lawyer representing a licensee before the Dental Board. The relevant “recognized

standards of . .. practice in the community” are those in the legal community, and

Dr. Downey cannot opine on those standards. /d.

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4393} We briefly address and reject Plaintiff's contention that the grant of summary

record when rendering its decision. Plaintiff does not identify the evidence the

? 66.

district court purportedly failed to consider, with the exception of the court’s “prior

order denying summary judgment on causation[,]” which we have already held was

not the law of the case, and was irrelevant to the breach of duty issues raised by the

subsequent summary judgment motion. “We will not search the record for facts,

areuments, and rulings in order to support generalized arguments.” Muse v. Muse,

2009-NMCA-003, 9 72, 145 N.M. 451, 200 P.3d 104.

10
11

B. The District Judge Properly Granted Summary Judgment in Favor of
Defendants on Plaintiff's Misrepresentation and Fraud Claims

40} Plaintiff argues that Defendants’ motion for summary judgment on Plaintiff's

misrepresentation and fraud claims failed to meet its burden of showing the absence

of any genuine issues of material fact requiring trial. We disagree.

4143. Defendants had the “initial burden of negating at least one of the essential

elements” of each claim; however, “to satisfy the threshold requirement of making

a prima facie showing of entitlement to summary judgment, [Rule] 1-056(C) does

not require a moving party to support its motion with affidavits of .. . experts or

other sworn testimony affirmatively disproving [the plaintiff]s’ claims.”

Blauwkamp, 1992-NMCA-048, {§ 14-15 (emphasis added). Rather, the moving

N
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party may show through “the pleadings, depositions, answers to interrogatories and

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admissions on file, together with the affidavits” that “the nonmoving party’s

evidence is_insi

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claim.” /d. | 15-16 (internal quotation marks and citations omitted)).

2 66

442} Plaintiff argues that Defendants’ “statement to her that she must have a lawyer

represent her [in the Board matter] is enough to state a claim for fraud],]” because it

is demonstrably false, and because she relied on Defendants’ advice to her detriment

and if he had not made the statement, she would not have hired him. Fraud requires

proof, by clear and convincing evidence, that: (1) “a representation of fact was made

which was not true”; (2) “either the falsity of the representation was known to the

party making it or the representation was recklessly made”; (3) “the representation

was made with the intent to deceive and to induce [the claimant] to rely on the

representation”; and (4) “[the claimant] did in fact rely on the representation.” UJI

13-1633 NMRA. Here, assuming that Defendants’ email statement that “you must

have a lawyer take care of this” should be taken literally, as a statement that

representation by a lawyer is legally required in Board proceedings, and that this

representation was therefore false, there is no genuine dispute of material fact as to

Defendants’ intent. Defendant Cadigan, in his affidavit in support of summary

judgment, stated that he advised Plaintiff that she must have an attorney represent

her to convey that he believed Plaintiff should have a lawyer assist her in a matter

where she was threatened with an NCA against her professional license. Expert

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letter from the Board, because in Ms. Nowara’s extensive experience, licensees have

a greater chance of success in disciplinary matters if they are represented by counsel,

and the Boards are accustomed to such representation. As we have said, because

Plaintiff “failed to specifically controvert Defendants’ material facts with affidavits

or admissible evidence” these facts are deemed admitted. Rule 1-056(D)(2), (E).

Moreover, we agree with the district court that Plaintiffs affidavit (and attachments)

in support of summary judgment contains no evidence from which a fact-finder

could infer that Defendants, through saying that Plaintiff “must” have a lawyer

represent her, intended to deceive Plaintiff into believing that she was /egally

required to retain an attorney in the Board matter. Lopez v. Townsend, 1938-NMSC-

058, J 49, 42 N.M. 601, 82 P.2d 921 (stating that where “circumstantial evidence is

relied upon for recovery,” the inference sought by the plaintiff must be “the more

probable hypothesis’). Plaintiff's argument and speculation to the contrary, set forth

in her response and attached affidavit, are not evidence upon which a court can rely

ina summary judgment proceeding. See VP. Clarence Co. v. Colgate, 1993-NMSC-

022, 9 2, 115 N.M. 471, 853 P.2d 722; Springer Corp. v. Dallas & Mavis

ERA 4 go44 D4 m1 O4

Forwarding Co., 1976-NMCA-130, § 11, 90 N.M. 58, 559 P.2d 846 (“An inference

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which will support a judgment cannot be supposition or conjecture, but must be a

43} Plaintiff next argues that, in the affidavit attached to her summary judgment

responses, she set forth “several allegations of fraud” supported by documented

evidence in the form of emails and letters that Defendants wrote. and that these

allegations “are sufficient to establish a genuine issue of material fact[] sufficient to

withstand ... summary judgment.” Relatedly, Plaintiff (again) argues that the district

court failed to consider the whole record. But Plaintiff fails to identify any of the

several allegations that she claims create a material dispute of fact, and does not say

what portion of the record the district court failed to consider. We “will not search

the record to find evidence to support an appellant’s claims[,]” /n re Estate of Heeter,

1992-NMCA-032, 4 15, nor “search the record for facts, arguments, and rulings in

order to support generalized arguments.” Muse, 2009-NMCA-003, 4 72.

C. Audio Recording of Proceedings

(44; Plaintiff's final argument is that the district court should have granted her

request that the hearings in her case be recorded, citing her October 2015 motion for

“all hearings” to be audio recorded. Plaintiff claims that she “made important

statements in hearings that have been removed, scrambled or come out as inaudible,”

but does not explain or proffer an example of even one of these purported errors.

More importantly, Plaintiff cites no authority for the proposition that it was an abuse

1] of the district court’s discretion to refuse audio recording, when a stenographic
2| recording of the proceedings was taken. Where a party cites no authority fora
3] proposition, we assume that none exists, and we do not consider it on appeal. /77
A| Educ. Servs., Inc. v. Taxation & Revenue Dep’t of State of N.M., 1998-NMCA-078,
5} 4.10, 125 N.M. 244, 959 P.2d 969; see In re Adoption of Doe, 1984-NMSC-024, ¥ 2
6| 100 N.M. 764, 676 P.2d 1329.
7| CONCLUSION
8| (453 We affirm.
9} 46 IT ISSO ORDERED.
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10 Cpr doe

11 LINDA. VANZI, Judge ~

12) WE CONCUR: /

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13)_2, Ub MMe

J. MILES HANISEE, Chief Judge

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January 9, 2020- Mary K. Hilley v. Michael Cadigan, No. A-1-CA-36741

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