May 12, 2020- Christobal I. Gutierrez v. Michael Eugene Shumate, No. A-1-CA-38249

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Odyssey.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 CHRISTOBAL I. GUTIERREZ,
3 Plaintiff-Appellant,
4 v. A-1-CA-38249
5 MICHAEL EUGENE SHUMATE,
6 Defendant-Appellee.
7 APPEAL FROM THE DISTRICT COURT OF HARDING COUNTY
8 Albert J. Mitchell Jr., District Judge
9 Christobal I. Gutierrez
10 Solano, NM
11 Pro Se Appellant
12 Kalm Law Firm, P.C.
13 Thomas L. Kalm
14 Albuquerque, NM
15
16 for Appellee
17 MEMORANDUM OPINION
18 VANZI, Judge.
19 {1} Plaintiff appeals the district court’s order granting Defendant’s Rule 1-012(B)(6)
20 NMRA motion to dismiss and dismissing Plaintiff’s complaint. This Court issued a
21 notice of proposed disposition proposing to affirm because the facts as alleged by
22 Plaintiff do not support recovery for alienation of affection pursuant to New Mexico
Court of Appeals of New Mexico
Filed 5/12/2020 10:23 AM

2
1 law. [CN 2-3] Plaintiff has filed a memorandum in opposition to this Court’s notice
2 of proposed disposition. Remaining unpersuaded, we affirm.
3 {2} In his memorandum in opposition, Plaintiff continues to assert the following
4 facts to support his contention that the district court should not have granted the
5 motion to dismiss: “Plaintiff was still married to his ex-wife at the time that . . .
6 Defendant was courting her[,]”; “[t]here is evidence that shows that their affair was
7 very much alive and thriving”; and, “[b]ecause of their affair, Plaintiff’s ex-wife filed
8 for divorce against . . . Plaintiff.” [MIO 2] “Our courts have repeatedly held that, in
9 summary calendar cases, the burden is on the party opposing the proposed disposition
10 to clearly point out errors in fact or law.” Hennessy v. Duryea, 1998-NMCA-036,
11 ¶ 24, 124 N.M. 754, 955 P.2d 683; see State v. Mondragon, 1988-NMCA-027, ¶ 10,
12 107 N.M. 421, 759 P.2d 1003 (stating that “[a] party responding to a summary
13 calendar notice must come forward and specifically point out errors of law and fact,”
14 and the repetition of earlier arguments does not fulfill this requirement), superseded
15 by statute on other grounds as stated in State v. Harris, 2013-NMCA-031, ¶ 3, 297
16 P.3d 374.
17 {3} As we noted in the notice of proposed disposition, the facts as alleged by
18 Plaintiff in his docketing statement are insufficient to demonstrate an entitlement to
19 relief under Thompson v. Chapman, 1979-NMCA-041, 93 N.M. 356, 600 P.2d 302.

3
1 Plaintiff asserts additional facts in his memorandum in opposition regarding the affect
2 Plaintiff’s divorce had on his family. [MIO 2] However, given that the facts as
3 asserted in Plaintiff’s memorandum in opposition also fail to demonstrate that
4 Defendant’s actions were prompted by malice, Plaintiff has raised no new facts that
5 would require reversal. See id. ¶ 7.
6 {4} To the extent Plaintiff asserts in his memorandum in opposition that “[o]ther
7 jurisdictions, including the State of New Mexico allow a person to sue for alienation
8 of affection[,]” including “North Carolina, Hawaii, Mississippi, South Dakota, and
9 Utah” [MIO 2], Plaintiff has failed to provide actual citations to the alleged authority
10 supporting his position, and without citations, we are unable to determine if such
11 authority applies to this case. See ITT Educ. Servs., Inc. v. Taxation & Revenue Dep’t,
12 1998-NMCA-078, ¶ 10, 125 N.M. 244, 959 P.2d 969 (stating that this Court will not
13 consider propositions that are unsupported by citation to authority); see also Curry
14 v. Great Nw. Ins. Co., 2014-NMCA-031, ¶ 28, 320 P.3d 482 (“Where a party cites no
15 authority to support an argument, we may assume no such authority exists.”).
16 Moreover, as we set out in our notice of proposed disposition, New Mexico law is
17 clear that it does not permit recovery on the facts as asserted by Plaintiff.
18 {5} Accordingly, for the reasons stated above and in our notice of proposed
19 disposition, we affirm the district court’s order.

4
1 {6} IT IS SO ORDERED.
2
3 LINDA M. VANZI, Judge
4 WE CONCUR:
5 ______________________________
6 J. MILES HANISEE, Chief Judge
7
8 BRIANA H. ZAMORA, Judge