Sysco Food Servs. v. RMT Enters

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 SYSCO FOOD SERVICES OF 8 NEW MEXICO, LLC, a Delaware 9 limited liability company, 10 Plaintiff-Appellee, 11 v. NO. 29,626 12 RMT ENTERPRISES, INC., 13 a New Mexico corporation d/b/a 14 Balloon Fiesta - Chili Willie’s 15 and TOM CONTRERAS, 16 Defendants-Appellants. 17 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 18 Valerie A. Huling, District Judge 19 Spann, Hyer, Hollowwa & Artley 20 James A. Artley 21 Albuquerque, NM 22 for Appellee 23 Tom Contreras 24 Albuquerque, NM 25 Pro Se Appellant 1 MEMORANDUM OPINION 2 WECHSLER, Judge. 3 Defendants are appealing from a district court default judgment. The default 4 judgment was entered on May 27, 2009. [RP 31] Defendants did not file a motion to 5 set aside the default judgment pursuant to Rule 1-055(C) NMRA. Instead, Defendants 6 filed a notice of appeal on June 1, 2009. [RP 34] However, motions to set aside a 7 default judgment must be made in the first instance with the district court, and rulings 8 on these motions are thereafter reviewed by the appellate courts for an abuse of 9 discretion. See generally Springer Corp. v. Herrera, 85 N.M. 201, 202 , 510 P.2d 10 1072, 1073 (1973), overruled on other grounds by Sunwest Bank of Albuquerque v. 11 Roderiguez, 108 N.M. 211, 214 , 770 P.2d 533, 536 (1989). Because Defendants did 12 not file a motion in the district court to set aside the default judgment, we have no 13 factual basis to reach their claim. Matters not of record cannot be reviewed on appeal. 14 See State v. Martin, 101 N.M. 595, 603 , 686 P.2d 937, 945 (1984). Accordingly, our 15 calendar notice proposed to remand to the district court to consider the merits of 16 Defendants’ attempt to set aside the default judgment and to dismiss the appeal. No 17 memorandum in opposition has been filed, and the time for doing so has expired. See 18 Rule 12-210(D)(3) NMRA. Accordingly, we dismiss the appeal and remand this [2] 1 matter to the district court. 2 IT IS SO ORDERED. 3 _______________________________ 4 JAMES J. WECHSLER, Judge 5 WE CONCUR: 6 _________________________________ 7 MICHAEL D. BUSTAMANTE, Judge 8 _________________________________ 9 RODERICK T. KENNEDY, Judge