1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
3 also note that this electronic memorandum opinion may contain computer-generated errors or other
4 deviations from the official paper version filed by the Court of Appeals and does not include the
5 filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 CHARLES EDWARD WESLEY
8 #52506,
9 Plaintiff-Appellant,
10 v. NO. 30,173
11 JOE WILLIAMS, SECRETARY
12 NEW MEXICO CORRECTIONS
13 DEPARTMENT, and ROBERT
14 ULIBARRI, WARDEN, CENTRAL
15 NEW MEXICO CORRECTIONS
16 FACILITY,
17 Defendants-Appellees.
18 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
19 James A. Hall, District Judge
20 Charles Edward Wesley
21 Grants, NM
22 Pro Se Appellant
23 Peggy A. Bowen
24 Santa Fe, NM
25 for Appellees
26 MEMORANDUM OPINION
27 FRY, Chief Judge.
1 Plaintiff, filing pro se, appeals the district court’s order dismissing his
2 complaint against Defendants with prejudice. We issued a notice of proposed
3 summary disposition proposing to summarily affirm the district court. Plaintiff filed
4 a timely memorandum in opposition, which we have duly considered. We affirm.
5 DISCUSSION
6 Initially, we note that Plaintiff has attached numerous exhibits to his
7 memorandum in opposition as he did with his docketing statement. Once again, we
8 remind Plaintiff that an appellate court reviews only matters that were presented to the
9 trial court. See Campos Enters. v. Williams & Co., 1998-NMCA-131, ¶ 12, 125 N.M.
10 691, 964 P.2d 855. Therefore, we will not consider any of the attachments unless they
11 are already part of the record on appeal.
12 Turning to the merits, Plaintiff raises various allegations of error concerning the
13 district court’s dismissal of his complaint. [MIO 1-5] Plaintiff continues to argue that
14 Defendants did not file a timely answer to his complaint, that the district court did not
15 address any of Plaintiff’s motions, that the district court did not provide reasons for
16 dismissing the complaint, that opposing counsel did not enter an appearance, that
17 Plaintiff exhausted all informal remedies and filed a timely notice of claim and tort
18 complaint, and that Defendants were not immune from suit because they were not
2
1 acting in the scope of their duties. [DS 1-4; MIO 1-5] Despite these assertions, we are
2 not persuaded that the district court erred.
3 Plaintiff filed a complaint and an amended complaint pursuant to the New
4 Mexico Tort Claims Act, NMSA 1978, Sections 41-4-1 to -27 (1976, as amended
5 through 2009). [RP 1-9, 202-04] He named as defendants Joe Williams, the secretary
6 of the New Mexico Corrections Department, and Robert Ulibarri, a warden. [RP 1,
7 202] The district court dismissed Plaintiff’s complaint in its entirety based on a motion
8 by Defendant Williams. [RP 334] Defendant Williams moved for dismissal in part
9 because Plaintiff’s complaint for recovery of lost property was barred by sovereign
10 immunity and because Plaintiff failed to give proper notice. [RP 236-39]
11 Under the Tort Claims Act, state governmental entities and public employees
12 acting within the scope of their duties “are granted immunity from liability for any
13 tort” unless the Act provides a specific waiver. See § 41-4-4(A). Thus, Plaintiff’s
14 cause of action against Defendants must fit within one of the exceptions to the granted
15 immunity. See § 41-4-5 to -12 (listing specific exceptions). As we discussed in our
16 notice of proposed disposition, the record indicates that Plaintiff failed to identify any
17 specific waiver of immunity under the Act for the claims asserted in his complaint.
18 [RP 1-9] Thus, we proposed to hold that it was proper for the district court to dismiss
19 the complaint on grounds that Plaintiff did not meet his burden of establishing that his
3
1 complaint fell within an exception to the immunity granted in the Tort Claims Act.
2 Not only does Plaintiff’s complaint fail to identify an exception, [RP 1-9, 202-04] but
3 Plaintiff’s response to Defendant Williams’ motion to dismiss fails to argue that an
4 exception applies. [RP 1-9, 202-04, 301-07] “If no specific waiver of immunity can
5 be found in the Tort Claims Act, plaintiffs’ complaint must be dismissed as to the
6 governmental defendant.” See Pemberton v. Cordova, 105 N.M. 476, 478, 734 P.2d
7 254, 256 (Ct. App. 1987). Because Plaintiff failed to plead that his case fell within an
8 exception, we remain persuaded that the district court properly dismissed his
9 complaint.
10 In response, Plaintiff argues that Defendants were not acting in the scope of
11 their duties because they failed to follow their policy of allowing Plaintiff to mail his
12 personal property home. [MIO 4-5] Because they were not acting within the scope of
13 their duties, Plaintiff contends that Defendants were not protected by sovereign
14 immunity. [Id.] As we noted in our notice of proposed disposition, it does not appear
15 that Plaintiff made this argument in the complaint, the amended complaint, his
16 motions for default judgment and summary judgment, or his responses to Defendants’
17 motion for dismissal. The first time there is any indication that Plaintiff raised this
18 argument is in the docketing statement. [RP 340] Accordingly, we are not persuaded
19 that this argument is properly before us on appeal. See State v. Silver, 83 N.M. 1, 2,
4
1 487 P.2d 910, 911 (Ct. App. 1971) (recognizing that when the record does not show
2 that the appellant’s contention was presented to the trial court, it will not be
3 considered on appeal).
4 Moreover, we are not persuaded that there is any merit to Plaintiff’s argument
5 that Defendants were not acting within the scope of their duties. Our case law makes
6 clear that the Tort Claims Act “clearly contemplates including employees who abuse
7 their officially authorized duties, even to the extent of some tortious and criminal
8 activity.” Celaya v. Hall, 2004-NMSC-005, ¶ 25, 135 N.M. 115, 85 P.3d 239. Here,
9 we do not see any state of facts as alleged by Plaintiff in the complaint that would
10 support a finding that Defendants were not acting within the scope of their duties in
11 storing and transferring Plaintiff’s personal property. Accordingly, we hold that
12 Defendants’ actions were within the scope of their duties. Because Defendants’
13 actions do not come within any of the specific waivers of immunity, we hold that
14 Plaintiff’s tort claims are barred by the Tort Claim Act. Given this holding, we need
15 not address our alternative proposed disposition based on untimely notice.
16 Because Plaintiff failed to identify a specific waiver, we proposed to affirm the
17 district court’s order of dismissal. Our notice of proposed disposition noted that we
18 were not persuaded that any of Plaintiff’s additional allegations of error had any merit.
5
1 We remain persuaded that our notice of proposed disposition was correct; however,
2 we briefly address Plaintiff’s remaining arguments.
3 Although Plaintiff argues that the district court erred in ignoring his motions for
4 default judgment based on Defendant’s failure to file a timely answer to his complaint,
5 [MIO 2] we find no abuse of discretion in the district court reaching the merits of the
6 case. See Springer Corp. v. Herrera, 85 N.M. 201, 202-03, 510 P.2d 1072, 1073-74
7 (1973) (indicating that it is the policy of the law to look with disfavor on default
8 judgments and that cases be decided on their merits, and stating further that a motion
9 to set aside a default judgment is addressed to the sound discretion of the court),
10 overruled on other grounds by Sunwest Bank v. Roderiguez, 108 N.M. 211, 770 P.2d
11 533 (1989). In addition, despite Plaintiff’s contention that the district court failed to
12 enter reasons for dismissing his complaint, [MIO 2-3] the district court indicated it
13 was dismissing based on Defendants’ motion for dismissal. [RP 334] As discussed
14 above, the district court’s dismissal is affirmable. Finally, although Plaintiff claims
15 that defense counsel failed to enter an appearance, Plaintiff gives us no reason to
16 believe that he was prejudiced by the absence of an entry of appearance and no
17 authority for reversal based on this alleged error. [MIO 2-3]
18 For these reasons, and those in the notice of proposed disposition, we affirm.
19 IT IS SO ORDERED.
6
1
2 CYNTHIA A. FRY, Chief Judge
3 WE CONCUR:
4
5 JONATHAN B. SUTIN, Judge
6
7 LINDA M. VANZI, Judge
7