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

 2 FERNANDO NAVA,

 3          Plaintiff-Appellant,

 4 v.                                                                    No. A-1-CA-36897

 5 WELLS FARGO BANK, N.A.,

 6          Defendant-Appellee,

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Beatrice J. Brickhouse, District Judge

 9 Stalter Law, LLC
10 Kenneth H. Stalter
11 Albuquerque, NM

12 for Appellant

13 Snell & Wilmer, LLP
14 Sandra A. Brown
15 Albuquerque, NM

16 for Appellee.

17                                 MEMORANDUM OPINION

18 HANISEE, Judge.
 1   {1}   Plaintiff Fernando Nava appeals following the district court’s dismissal of his

 2 complaint. After the resolution of a foreclosure action by sale of Plaintiff’s house in

 3 a short sale (No. D-1329-CV-2012-02756), Plaintiff filed a suit against Defendant

 4 Wells Fargo Bank, N.A., alleging bad faith, unfair trade practices, and fraud during

 5 the foreclosure proceedings. This Court issued a calendar notice proposing to affirm

 6 because we were unable to discern the relief Plaintiff sought and grounds on which

 7 that requested relief was based, given a lack of clarity in Plaintiff’s docketing

 8 statement and Plaintiff’s failure to adequately develop or identify what his arguments

 9 on appeal may be. Plaintiff then filed a memorandum in opposition (MIO). Later,

10 Plaintiff retained counsel who filed a motion to amend the docketing statement and

11 a motion to amend the memorandum in opposition (collectively, motion to amend) to

12 this Court’s disposition. Defendant filed a response to this motion, opposing it.

13 Having considered the arguments raised by Plaintiff in his MIO and the motion to

14 amend, we remain unpersuaded. We deny Plaintiff’s motion to amend the docketing

15 statement and motion to amend the memorandum in opposition and affirm the district

16 court’s order of dismissal.

17   {2}   Most recently, instead of addressing the arguments that Plaintiff raised in his

18 docketing statement and this Court analyzed in our calendar notice, Plaintiff now

19 seeks to amend his docketing statement to argue that (1) the district court erred by


                                              2
 1 ruling that Plaintiff’s claims were barred as compulsory counterclaims and pursuant

 2 to res judicata and accord and satisfaction where a statutory “safe harbor” exists

 3 “allowing borrowers to bring mortgage-related claims even after a prior foreclosure

 4 proceeding, NMSA 1978, § 58-21A-6(E) (2009)” and (2) the district court erred by

 5 dismissing Plaintiff’s claims as not pleaded with specificity, where one of the claims

 6 was bad faith rather than fraud; Plaintiff was not given an opportunity to replead the

 7 claims; and “the complaint identified a specific alleged misrepresentation.” [Proposed

 8 Amended Docketing Statement, 3-4]

 9   {3}   This Court will grant a motion to amend the docketing statement to include

10 additional issues if the motion (1) is timely, (2) states all facts material to a

11 consideration of the new issues sought to be raised, (3) explains how the issues were

12 properly preserved or why they may be raised for the first time on appeal, (4)

13 demonstrates just cause by explaining why the issues were not originally raised in the

14 docketing statement, and (5) complies in other respects with the appellate rules. See

15 State v. Rael, 1983-NMCA-081, ¶¶ 7-8, 10-11, 14-17, 100 N.M. 193, 668 P.2d 309.

16 Because Plaintiff’s motion to amend fails on several of these factors, we deny the

17 motion.

18   {4}   First, a motion to amend will be considered timely when filed prior to the

19 expiration of the time for filing a memorandum in opposition in cases assigned to the


                                             3
 1 summary calendar. Id. ¶ 8 (citation omitted). This Court filed a calendar notice

 2 assigning this matter to the summary calendar and proposing to affirm on May 1,

 3 2018. Thereafter, any memorandum in opposition was due within twenty days. Rule

 4 12-210(D)(2) NMRA. However, Plaintiff filed this motion to amend the docketing

 5 statement on June 27, 2018, which is untimely pursuant to our Appellate Rules.

 6 Plaintiff acknowledges this untimeliness in his motion to amend. [Motion to Amend,

 7 4] This alone is reason to deny the motion under Rael.

 8   {5}   In fact, we note that this motion to amend is so untimely that Plaintiff had time

 9 to file a timely memorandum in opposition, on May 9, 2018. Therefore, Plaintiff now

10 also requests to amend that memorandum in opposition. We note that there is no

11 provision in our Appellate Rules that would permit amending a memorandum in

12 opposition at all. This request is particularly far outside the bounds of appellate

13 procedure, and we are forced to deny it.

14   {6}   To the extent that we have reviewed the motion to amend, we note that there are

15 significant preservation issues. Plaintiff now argues that a statutory provision, Section

16 58-21A-6(E), should be applied to the portion of the district court’s order dismissing

17 on the grounds that Plaintiff’s arguments should have been raised as mandatory

18 counterclaims in the former foreclosure suit. Plaintiff does not indicate this argument

19 was raised before, and in fact acknowledges in his motion to amend that it appears that


                                               4
 1 the district court did not consider this statute. [Motion to Amend, 5] “To preserve an

 2 issue for review on appeal, it must appear that appellant fairly invoked a ruling of the

 3 trial court on the same grounds argued in the appellate court.” Benz v. Town Ctr. Land,

 4 LLC, 2013-NMCA-111, ¶ 24, 314 P.3d 688 (internal quotation marks and citation

 5 omitted). “The primary purposes for the preservation rule are: (1) to specifically alert

 6 the district court to a claim of error so that any mistake can be corrected at that time,

 7 (2) to allow the opposing party a fair opportunity to respond to the claim of error and

 8 to show why the court should rule against that claim, and (3) to create a record

 9 sufficient to allow this Court to make an informed decision regarding the contested

10 issue.” Sandoval v. Baker Hughes Oilfield Operations, Inc., 2009-NMCA-095, ¶ 56,

11 146 N.M. 853, 215 P.3d 791. On preservation grounds, we decline to grant the Motion

12 to Amend, because it does not show that the issue was preserved below, nor does it

13 claim that this may be raised for the first time on appeal. See Rael, 1983-NMCA-081,

14 ¶ 7.

15   {7}   Plaintiff’s second issue also fails to allow for an amended docketing statement.

16 Plaintiff argues that the district court erred by dismissing Plaintiff’s claims as not

17 pleaded with specificity, where one of the claims was bad faith rather than fraud;

18 Plaintiff was not given an opportunity to replead the claims; and “the complaint

19 identified a specific alleged misrepresentation.” [Proposed Amended Docketing


                                               5
 1 Statement, 3-4]. This Court will deny motions to amend that raise issues that are not

 2 viable, even if they allege fundamental or jurisdictional error. See State v. Moore,

 3 1989-NMCA-073, ¶¶ 36-51, 109 N.M. 119, 782 P.2d 91, superceded by rule on other

 4 grounds as stated in State v. Salgado, 1991-NMCA-044, 112 N.M. 537, 817 P.2d 730;

 5 see Moore, 1989-NMCA-073, ¶ 42 (“By viable, we meant to describe an argument

 6 that was colorable, or arguable, and to distinguish arguments that are devoid of any

 7 merit.”). We remain unclear about the argument, especially what the “specific alleged

 8 misrepresentation” is. [Proposed Amended Docketing Statement, 4] “We will not

 9 review unclear arguments, or guess at what [a party’s] arguments might be.” Headley

10 v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076; see

11 also Rael, 1983-NMCA-081, ¶ 10 (stating that a motion to amend a docketing

12 statement must contain an accurate statement of all facts material to a consideration

13 of the issues raised).

14   {8}   This Court is not unsympathetic to Plaintiff’s plight with trial counsel in this

15 case, and we appreciate his current counsel’s alacrity. However, Plaintiff chose to

16 represent himself pro se. As we recounted in our calendar notice, “We view pleadings

17 by self-represented litigants with tolerance; however, a self-represented litigant,

18 ‘having chosen to represent him [or her]self, is held to the same standard of conduct




                                               6
 1 and compliance with court rules, procedures, and orders as are members of the bar.’

 2 Newsome v. Farer, 1985-NMSC-096, ¶ 18, 103 N.M. 415, 708 P.2d 327.” [CN 1-2]

 3   {9}   Because we deny the motion to amend, we return to the memorandum in

 4 opposition to this Court’s notice of proposed disposition filed by Plaintiff on May 9,

 5 2018. In that MIO, Plaintiff did not provide this Court with any authority or argument

 6 to establish that the district court’s dismissal of his complaint was in error. See

 7 Corona v. Corona, 2014-NMCA-071, ¶ 28, 329 P.3d 701 (“This Court has no duty

 8 to review an argument that is not adequately developed.”); In re Adoption of Doe,

 9 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 (“We have long held that to

10 present an issue on appeal for review, an appellant must submit argument and

11 authority as required by rule. . . . Issues raised in appellate briefs which are

12 unsupported by cited authority will not be reviewed by us on appeal.” (citations

13 omitted)). Moreover, to the extent Plaintiff continues to argue that there were forgery

14 and fraud at the time of the initial mortgage, or that an improper financial relationship

15 existed between Defendant and the entity that purchased the house at issue at a short

16 sale, Plaintiff has not otherwise developed these arguments. See Elane Photography,

17 LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 (“We will not review unclear

18 arguments, or guess at what a party’s arguments might be.” (alteration, internal

19 quotation marks, and citation omitted)). Nor has Plaintiff offered a factual basis or


                                               7
 1 legal theory to support his vague allegations against his trial counsel, which seem to

 2 be raised for the first time in his memorandum in opposition.

 3   {10}   Furthermore, to the extent Plaintiff has submitted additional documentation in

 4 his response to this Court’s calendar notice, we note that “it is improper to attach to

 5 a brief documents which are not part of the record on appeal.” In re Mokiligon, 2005-

 6 NMCA-021, ¶ 7, 137 N.M. 22, 106 P.3d 584 (alteration, internal quotation marks, and

 7 citation omitted). “[T]his Court will not consider and counsel should not refer to

 8 matters not of record in their briefs.” Id. (internal quotation marks and citation

 9 omitted). An appellate court reviews only matters that were presented to the trial

10 court, and this Court cannot now consider materials that were not part of the case

11 below. See Campos Enters. v. Edwin K. Williams & Co., 1998-NMCA-131, ¶ 12, 125

12 N.M. 691, 964 P.2d 855.

13   {11}   Accordingly, we affirm.

14   {12}   IT IS SO ORDERED.


15                                          _______________________________
16                                          J. MILES HANISEE, Judge


17 WE CONCUR:



18 ___________________________

                                              8
1 STEPHEN G. FRENCH, Judge



2 __________________________
3 EMIL J. KIEHNE, Judge




                               9
