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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 DONNA R. VARELA and
 3 TORIBIO MARTINEZ, JR.,

 4          Plaintiffs-Appellants,

 5 v.                                                                                   NO. 32,978

 6 SUSANO ORTIZ and his wife
 7 LORENA ORTIZ,

 8          Defendants-Appellees.


 9 APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY
10 John M. Paternoster, District Judge

11 Everett Law
12 Peter Everett IV
13 Albuquerque, NM

14 for Appellants

15 Will Ferguson & Associates
16 Robert M. Ortiz
17 Albuquerque

18 for Appellees

19                                 MEMORANDUM OPINION
 1 GARCIA, Judge.

 2   {1}   Plaintiffs appeal from the district court’s order dismissing their case without

 3 prejudice, contending that it was an abuse of discretion for the district court to dismiss

 4 in light of their counsel’s unexpected medical problems. This Court issued a calendar

 5 notice proposing to affirm. Plaintiffs have filed a memorandum in opposition to this

 6 Court’s notice of proposed disposition. Having given due consideration to Plaintiffs’

 7 arguments, we affirm.

 8   {2}   In this Court’s calendar notice, we noted that “[i]t is within a trial judge’s

 9 inherent power to dismiss a cause of action for failure to prosecute, independent of

10 any statutory authority,” and that we review such decisions for an abuse of discretion.

11 [CN 2 (citing Cottonwood Enters. v. McAlpin, 1989-NMSC-064, ¶ 13, 109 N.M. 78,

12 781 P.2d 1156)] This Court then recounted the numerous delays and continuances in

13 discovery and depositions in this case, since the Plaintiffs filed their complaint in early

14 2009. We noted the district court’s finding that Plaintiffs’ counsel had significant

15 medical conditions that had “rendered him functionally incapable of actively and

16 consistently participating in this case,” [CN 5 (citing RP 295)] and proposed to

17 conclude that “[t]here comes a point . . . where the sued Defendants are prejudiced by

18 delays in the prosecution no matter what the reason.” [CN 6]




                                                2
 1   {3}   Plaintiffs appear to challenge this Court’s reliance on the district court’s

 2 inherent authority to dismiss their case, by citing to Summit Electric Supply Co. v.

 3 Rhodes & Salmon, P.C., 2010-NMCA-086, ¶ 15, 148 N.M. 590, 241 P.3d 188, for the

 4 proposition that “in Jimenez v. Walgreens Payless, [1987-NMSC-082, ¶ 10, 106 N.M.

 5 256, 741 P.2d 1377] our Supreme Court held that district courts do not possess

 6 inherent power to dismiss for failure to prosecute, independent of a statute or rule.”

 7 We note, however, that the holding in Jimenez was premised on the district court’s

 8 failure to follow its own rules governing dismissal of cases. 1987-NMSC-082, ¶ 10.

 9 Summit acknowledges this distinction through its reliance on Vigil v. Thriftway

10 Marketing Corp., 1994-NMCA-009, ¶ 12, 117 N.M. 176, 870 P.2d 138. In Vigil, our

11 Supreme Court clearly stated, “Where a rule of civil procedure addresses the specific

12 situation before a court, a trial judge is not free to ignore the dictates of the rule and

13 rely instead on inherent authority.”

14   {4}   We understand Plaintiffs to argue that the district court could not rely on its

15 inherent authority to dismiss, because Rule 1-041(E)(2) NMRA governed its actions.

16 [MIO 6-7] However, Rule 1-041(E)(2) does not apply where “a pretrial scheduling

17 order has been entered pursuant to Rule 1-016 NMRA,” and a pretrial scheduling

18 order was entered in this case on March 8, 2010. [RP 37-39] Moreover, as Plaintiffs

19 acknowledge and as we recognized in our notice of proposed disposition, the district


                                               3
 1 court did not reference a particular rule of civil procedure in support of its dismissal

 2 of the case without prejudice. [CN 2; MIO 4] Where “the trial court did not state by

 3 what authority it was dismissing the case, we will assume it was doing so pursuant to

 4 its inherent authority.” Mora v. Hunick, 1983-NMCA-127, ¶ 13, 100 N.M. 466, 672

 5 P.2d 295. And, importantly, the circumstances presented by this case are not a simple

 6 lack of prosecution, but also a failure to comply with the discovery orders of the

 7 district court. As Plaintiffs have not directed this Court to a rule covering this specific

 8 circumstance, we conclude that the district court was not precluded from exercising

 9 its inherent authority to dismiss.

10   {5}   Plaintiffs also argue that the district court abused its discretion by not

11 considering all of the circumstances. [MIO 12 (citing Dunham-Bush, Inc. v. Palkovic,

12 1973-NMSC-012, ¶ 12, 84 N.M. 547, 505 P.2d 1223, for the proposition that

13 discretion is abused “when the court exceeds the bounds of reason, all the

14 circumstances before it being considered” (internal quotation marks and citation

15 omitted))]. However, to the extent Plaintiffs have responded to this Court’s notice of

16 proposed disposition by pointing to a number of facts regarding their counsel’s

17 condition that do not appear to have been before the district court, the “reference to

18 facts not before the district court and not in the record is inappropriate and a violation

19 of our Rules of Appellate Procedure.” Durham v. Guest, 2009-NMSC-007, ¶ 10, 145


                                                4
 1 N.M. 694, 204 P.3d 19. And, this Court will not consider a party’s new factual

 2 assertions on appeal. See id. Plaintiffs do not demonstrate how the district court

 3 abused its discretion in dismissing their case based on the information that was before

 4 it. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683

 5 (“Our courts have repeatedly held that, in summary calendar cases, the burden is on

 6 the party opposing the proposed disposition to clearly point out errors in fact or law.”).



 7   {6}   Finally, Plaintiffs argue that the district court abused its discretion in not

 8 holding a hearing prior to dismissing their case without prejudice. To the extent

 9 Plaintiffs cite to language in Summit indicating that the district court should have held

10 a hearing prior to dismissal [MIO 6], Summit analyzed the district court’s actions

11 under Rule 1-041(E). 2010-NMCA-086, ¶ 7. Conversely, our Supreme Court has held

12 that Rule 1-041(B) NMRA “does not require notice and a hearing prior to dismissal.”

13 Lowery v. Atterbury, 1992-NMSC-001, ¶ 8, 113 N.M. 71, 823 P.2d 313; see also Rule

14 1-041(B) (“For failure of the plaintiff to prosecute or to comply with these rules or

15 any order of court, a defendant may move for dismissal of an action or of any claim

16 against the defendant.” (emphasis added)). Given that Plaintiffs do not direct this

17 Court to any authority that requires a hearing be held prior to the district court’s

18 dismissal of a case for failure to comply with its orders, we assume no such authority


                                               5
1 exists. See In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d

2 1329 (providing that where a party cites no authority to support an argument, we may

3 assume no such authority exists).

4   {7}   For the reasons stated above and in this Court’s notice of proposed disposition,

5 we affirm.

6   {8}   IT IS SO ORDERED.



7
8                                          TIMOTHY L. GARCIA, Judge



9 WE CONCUR:



10
11 CYNTHIA A. FRY, Judge



12
13 M. MONICA ZAMORA, Judge




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