July 23, 2020- Villa Alegre Apartments v. Lonnica Montoya, No. A-1-CA-38266

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court or Appeals of New Mexico
VILLA ALEGRE APARTMENTS, mee
Plaintiff-A ppellee, A. ~ £2
Mark Reynolds
V. No. A-1-CA-38266
LONNICA MONTOYA and
ALL OTHER OCCUPANTS,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY

Francis J. Mathew, District Judge
Vance, Chavez & Associates

Claud Eugene Vance

Albuquerque, NM

for Appellee

Lonnica Montoya
Santa Fe, NM

Pro Se Appellant
MEMORANDUM OPINION
VARGAS, Judge.
a} Defendant Lonnica Montoya, seeks to appeal following the entry of findings

of fact, conclusions of law, and a judgment granting possession of certain rental

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1 property to Plaintiff, and awarding damages in an amount to be determined. We
2 previously issued a notice of proposed summary disposition in which we proposed
3 to dismiss in light of jurisdictional concerns. Defendant has filed a response, which
4 we will treat as a memorandum in opposition. See Rule 12-210(D)(2) NMRA
5 (providing that parties may respond to proposed summary dispositions by filing
6 memoranda in support or opposition). After due consideration, we remain
7 unpersuaded that the appeal is properly before us. We therefore dismiss.
8 {2} The relevant background information and principles of law were set forth in the
9 notice of proposed summary disposition. The memorandum in opposition does not
10 address our concerns about finality and/or mootness. We therefore adhere to our
11 initial assessment of these matters. See State ex rel. N.M. State Police Dep’t v. One
12 1984 Pontiac 6000, 1990-NMCA-085, ¶ 19, 111 N.M. 85, 801 P.2d 667 (“In appeals
13 assigned to the summary calendar, the party opposing summary disposition must
14 come forward and specifically point out errors in fact and in law in the calendar
15 notice.”); see also Frick v. Veazey, 1993-NMCA-119, ¶ 2, 116 N.M. 246, 861 P.2d
16 287 (explaining that failure to respond to a calendar notice constitutes acceptance of
17 the proposed summary disposition).
18 {3} We understand Defendant to suggest that this Court should stay the appeal
19 pending the resolution of a separate investigation of some kind. [MIO 1] However,

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1 the issuance of a stay would imply that the appeal is properly before us; and for the
2 reasons previously stated, we conclude that it is not. In any event, given the
3 uncertainty of the situation, as well as the apparent distinctness of the investigation
4 from the underlying proceedings, we perceive no basis for the issuance of a stay. Cf.
5 Poorbaugh v. Mullen, 1982-NMCA-141, ¶ 17, 99 N.M. 11, 653 P.2d 511 (“Matters
6 not of record are not before the reviewing court on appeal.”).
7 {4} Finally, Defendant alludes to a request for a new trial. [MIO 1] However, we
8 find no motion for new trial in the record, and such a motion cannot be brought in the
9 first instance on appeal. See State v. Trujillo, 1950-NMSC-056, ¶ 20, 54 N.M. 307,
10 224 P.2d 151 (explaining that the appellate courts do not entertain motions for new
11 trial in the first instance).
12 {5} Accordingly, for the reasons stated above and in the notice of proposed
13 summary disposition, we dismiss.
14 {6} IT IS SO ORDERED.
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16 JULIE J. VARGAS, Judge

1} WE CONCUR:

a|_Z.

3J. MILES HANISEE, Chief Judge

5| Baez ANA H. ZA , Judge