Barela v. Rutledge

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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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 ANTHONY BARELA, 8 Plaintiff-Appellant, 9 v. NO. 29,866 10 RONALD RUTLEDGE, 11 Defendant, 12 and 13 JOHN DUHIGG, 14 Defendant-Appellee. 15 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 16 Daniel A. Sanchez, District Judge 17 Anthony Barela 18 Albuquerque, NM 19 Pro Se Appellant 20 The Duhigg Law Firm 21 Katy Duhigg 22 Albuquerque, NM 23 for Appellee 24 MEMORANDUM OPINION 1 WECHSLER, Judge. 2 Appellant appeals from the district court’s amended judgment that his prior 3 attorney is entitled to $33,845.59 plus interest of Appellant’s recovery under an 4 attorney charging lien. [RP Vol.II/352, 354] Our amended notice proposed to affirm, 5 and Appellant filed a timely memorandum in opposition and motion to amend the 6 docketing statement, as well as an amended memorandum in opposition. We deny 7 Appellant’s motion to amend the docketing statement. We further remain 8 unpersuaded by Appellant’s arguments and therefore affirm. 9 Apart from the merits, Appellant continues to argue that the district court 10 abused its discretion in failing to rule on post-judgment motions. As discussed at 11 length in our notice, the case became final for purposes of appeal because the district 12 court implicitly denied a series of pending post-judgment motions filed by Appellant 13 and thereafter lacked jurisdiction to address any additional post-judgment motions that 14 Appellant filed. Therefore, to the extent Appellant requests that this case be remanded 15 to the district court for further hearings [amended MIO 5] and that he be allowed to 16 amend his docketing statement to address any resultant rulings by the district court 17 [MIO 4], we deny his request. See State v. Moore, 109 N.M. 119, 129 , 782 P.2d 91 , 18 101 (Ct. App. 1989) (providing that issues sought to be presented must be viable), 19 superseded on other grounds as recognized by State v. Salgado, 112 N.M. 537, 538 , [1] 817 P.2d 730, 731 (Ct. App. 1991). Moreover, whether the post-judgment motions 2 at issue lack merit [amended MIO 1] is a matter for the district court, not this Court, 3 to address in the first instance. See Lepiscopo v. Hopwood, 110 N.M. 30, 32 , 791 P.2d 4 481, 483 (Ct. App. 1990) (providing that “[w]here a litigant has a history of filing 5 meritless, vexatious lawsuits, however, and where that pattern unduly burdens the 6 judicial system, courts can constitutionally restrict the litigant’s access to the courts”). [7] 8 As for the merits of Appellant’s other contentions, Appellant continues to argue 9 that Appellee (Attorney Duhigg) violated Rule LR 1-304 NMRA. [amended MIO 2] 10 As provided in our notice, we believe Attorney Duhigg complied with the spirit of LR 11 1-304, and even if there was a violation of such rule, Appellant suffered no prejudice. 12 See State v. Fernandez, 117 N.M. 673, 677 , 875 P.2d 1104 , 1108 (Ct. App. 1994) 13 (providing that “[i]n the absence of prejudice, there is no reversible error”). 14 Appellant also argues that the award of an attorney charging lien was erroneous 15 because Attorney Duhigg was in contempt of court for failure to provide an itemized 16 billing statement. [amended MIO 2-3] As noted in the district court’s August 17, 17 2009 amended judgment, Attorney Duhigg filed a certificate to the court that he was 18 employed by Appellant on a contingent fee basis, that he provided Appellant with 532 19 pages of his work file, and that he provided a statement that he spent 132 hours on a [3] 1 monthly basis. [RP Vol.II/354] This provided sufficient documentation to the district 2 court of the amount of time Attorney Duhigg spent on Appellant’s case. While 3 Appellant casts this issue as contempt of court [amended MIO 2], the district court 4 was plainly satisfied with Attorney Duhigg’s efforts to comply with the court’s 5 request, and we see no basis for concluding otherwise. 6 All remaining issues set forth in Appellant’s docketing statement are affirmed 7 for the reasons provided in our notice. See State v. Mondragon, 107 N.M. 421, 423 , [8] 759 P.2d 1003, 1005 (Ct. App. 1988) (providing that “a party responding to a 9 summary calendar notice must come forward and specifically point out errors of law 10 and fact”). 11 Conclusion 12 Based on the foregoing discussion, as well as the discussion of Appellant’s 13 issues set forth in our notice, we affirm. 14 IT IS SO ORDERED. 15 ______________________________ 16 JAMES J. WECHSLER, Judge 17 WE CONCUR: 18 _______________________________ 19 RODERICK T. KENNEDY, Judge [4] 1 _______________________________ 2 LINDA M. VANZI, Judge