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

 2 LION’S GATE WATER,

 3          Petitioner-Appellant,

 4 v.                                                                    NO. A-1-CA-35022

 5 JOHN R. D’ANTONIO, JR.,
 6 STATE ENGINEER FOR THE
 7 STATE OF NEW MEXICO,

 8          Respondent-Appellee.

 9 APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY
10 J.C. Robinson, District Judge

11 Robert S. Simon
12 Albuquerque, NM

13 for Appellant

14   Office of the State Engineer
15   Gregory C. Ridgley, General Counsel
16   L. Christopher Lindeen, Deputy General Counsel
17   Paul D. Bossert, Special Assistant Attorney General
18   Santa Fe, NM

19 for Appellee

20                                 MEMORANDUM OPINION
 1 HANISEE, Judge.

 2   {1}   “This case comes to us through a long and tortuous route, wending its way from

 3 the Office of the State Engineer to [the New Mexico Supreme Court] over the course

 4 of more than six years.” Lion’s Gate Water v. D’Antonio, 2009-NMSC-057, ¶ 1, 147

 5 N.M. 523, 226 P.3d 622. So began our Supreme Court’s opinion when this case was

 6 first before it more than eight years ago. Upon remand to the district court and

 7 following more than two years without any significant activity by Petitioner to bring

 8 its claim to trial, the district court granted Respondent’s Rule 1-041(E)(1) NMRA

 9 motion to dismiss with prejudice Petitioner’s case, which dismissal Petitioner appeals.

10 Concluding that the district court did not abuse its discretion in granting Respondent’s

11 motion, we affirm.

12 BACKGROUND

13   {2}   The history of this case is set forth in detail in Lion’s Gate, 2009-NMSC-057.

14 Because this is a memorandum opinion and the parties are familiar with the facts of

15 the case, we only briefly set forth here the procedural history following our Supreme

16 Court’s remand in the prior appeal and reserve discussion of additional facts where

17 necessary to our disposition of the case.

18   {3}   Following our Supreme Court’s remand to the district court in December 2009,

19 Petitioner actively litigated its case for approximately eighteen months, starting in


                                               2
 1 March 2010 when new counsel for Petitioner entered his appearance and continuing

 2 through September 2011. On October 8, 2013, Respondent filed a motion to dismiss

 3 with prejudice Petitioner’s case under Rule 1-041(E)(1) on the basis that Petitioner

 4 “has taken no action to further its case in more than two years[.]” Over Petitioner’s

 5 opposition, the district court granted the motion after concluding that Petitioner “has

 6 taken no steps to bring its claim to trial or other final disposition since September 20,

 7 2011.” Petitioner moved for reconsideration, but before the district court could rule

 8 on that motion, Petitioner appealed the district court’s dismissal order to this Court.

 9 We issued a mandate summarily dismissing Petitioner’s appeal for lack of a final

10 order.

11   {4}    Following remand from this Court, neither party took any action to bring the

12 matter to the district court’s attention for more then six months, when, in April 2015,

13 counsel for Respondent contacted the district court to inquire about the status of the

14 case. While noting the “already voluminous pleadings spanning five files” available

15 for its consideration, the district court allowed the parties to file one supplemental

16 brief that it would consider in ruling on the motions pending before it.1 Upon

17 consideration of the pleadings in the record and the parties’ supplemental briefs, the

          1
17          In addition to its motion for reconsideration, Petitioner also filed a motion for
18 leave to file a sur reply to Respondent’s reply in support of its motion to dismiss. The
19 district court’s ruling on that motion is not at issue in this appeal and will not be
20 discussed further.

                                               3
 1 district court denied Petitioner’s motion for reconsideration. Petitioner appeals from

 2 that order.

 3 DISCUSSION

 4   {5}   Petitioner makes numerous arguments on appeal, which we consolidate and

 5 address as follows: (1) whether the district court erred in granting Respondent’s

 6 motion to dismiss, and (2) whether the district court erred by granting the motion

 7 without first holding an evidentiary hearing.

 8 I.      Whether the District Court Erred in Granting Respondent’s Motion to
 9         Dismiss

10   {6}   Petitioner advances various arguments as to why it was error for the district

11 court to dismiss Petitioner’s case, including that (1) dismissal is not in accordance

12 with our Supreme Court’s opinion in Lion’s Gate, (2) Rule 1-041(E)(1) is inapplicable

13 to the circumstances of this case, and (3) the district court abused its discretion in

14 granting Respondent’s motion to dismiss. We address each argument in turn.

15 1.      The District Court’s Dismissal of Petitioner’s Case Is Not Contrary to Our
16         Supreme Court’s Decision in Lion’s Gate

17   {7}   Petitioner first argues that the district court erred in granting Respondent’s

18 motion to dismiss because dismissal “is not in accord with the direction of the

19 Supreme Court” in Lion’s Gate. According to Petitioner, our Supreme Court “ordered

20 the [district court] to conduct a de novo review of the issues decided by”


                                              4
 1 Respondent—i.e., the availability of water for appropriation—and, thus, “the [district

 2 court] committed a serious and fundamental error” by granting Respondent’s motion

 3 to dismiss and not holding a trial de novo on the issue of water availability.

 4   {8}   As an initial matter, we note that Petitioner wholly fails to develop this

 5 argument or cite any authority in support thereof, meaning we are under no duty to

 6 even consider it. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137

 7 N.M. 339, 110 P.3d 1076 (declining to entertain a cursory argument that included no

 8 explanation of the party’s argument and no facts that would allow this Court to

 9 evaluate the claim); ITT Educ. Servs., Inc. v. N.M. Taxation & Revenue Dep’t, 1998-

10 NMCA-078, ¶ 10, 125 N.M. 244, 959 P.2d 969 (explaining that this Court will not

11 consider propositions that are unsupported by citation to authority). However, because

12 Petitioner so badly misconstrues Lion’s Gate’s mandate and has a history of

13 “fabricat[ing] principle[s,]” Lion’s Gate, 2009-NMSC-057, ¶ 28, we very briefly

14 address the merits—or rather, lack thereof—of Petitioner’s argument in order to fully

15 dispose of it.

16   {9}   In Lion’s Gate, our Supreme Court agreed with the argument advanced by

17 Respondent in that appeal and held that “the district court is limited to a de novo

18 review of the issue before the State Engineer, which was solely whether water is

19 available for appropriation.” 2009-NMSC-057, ¶ 2. The court reversed the district


                                             5
 1 court’s ruling that it had jurisdiction to conduct a trial de novo “on all issues” that had

 2 been before the State Engineer and remanded “for further proceedings consistent with

 3 this opinion.” Id. ¶¶ 14-15, 37. Nowhere did the court “order” the district court to

 4 conduct a trial de novo as Petitioner contends; rather, the opinion clarified that the

 5 district court had jurisdiction to do no more than conduct a de novo review on the

 6 limited issue of water availability. See id. ¶ 17 (“We conclude that a district court is

 7 limited to a de novo review of the issues decided by the State Engineer, which in this

 8 case is whether water is available for appropriation.” (emphasis added)). In other

 9 words, Lion’s Gate established the maximum reach—i.e., the limit—of the district

10 court’s reviewing capacity but nowhere mandated a minimum level of review.

11 Petitioner’s contention that the district court’s dismissal of Petitioner’s case

12 contravened our Supreme Court’s mandate in Lion’s Gate is without merit.

13 2.       Petitioner Fails to Establish That Rule 1-041(E)(1) Is Not Applicable

14   {10}   Petitioner next argues that “Rule 1-041(E)(1) is not applicable to this case

15 [because Petitioner] took significant actions to bring its claim to trial or other final

16 disposition during the two years following the filing of the action.” According to

17 Petitioner, “the rule is applicable only to the cases in which the [p]laintiff fails to

18 prosecute the case within the two years from the date of filing the complaint.”

19 Petitioner proffers myriad conclusory statements in support of this contention and


                                                6
 1 quotes, at length, rules from numerous cases interpreting Rule 1-041(E). Yet, nothing

 2 cited is on point or supplies any indication that a case that is initially prosecuted but

 3 thereafter languishes is somehow immunized from application of the rule. Ultimately,

 4 Petitioner fails to develop any cogent argument to support his contention that Rule 1-

 5 041(E)(1) is categorically inapplicable to this case, neither identifying the pertinent

 6 facts of this case nor explaining how the culled rules from the cited authorities apply

 7 to this case. As such, we give no further consideration to this argument. See Corona

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

 9 an argument that is not adequately developed.”).

10 3.       Petitioner Fails to Establish That the District Court’s Dismissal of its Case
11          Was an Abuse of Discretion

12   {11}   Petitioner next argues that the district court abused its discretion in dismissing

13 the case. We disagree.

14   {12}   A district court “has discretion to determine a motion to dismiss for inactivity,

15 and its decision will not be reversed except for abuse of discretion.” Cottonwood

16 Enters. v. McAlpin, 1989-NMSC-064, ¶ 6, 109 N.M. 78, 781 P.2d 1156. “An abuse

17 of discretion occurs when the ruling is clearly against the logic and effects of the facts

18 and circumstances of the case, is clearly untenable, or is not justified by reason.”

19 Progressive Cas. Ins. Co. v. Vigil, ___-NMSC-___, ¶ 13, ___ P.3d ___ (No. S-1-SC-

20 35130, Feb. 12, 2018) (internal quotation marks and citation omitted); see Paternoster

                                                7
 1 v. La Cuesta Cabinets, Inc., 1984-NMCA-097, ¶ 27, 101 N.M. 773, 689 P.2d 289

 2 (“Judicial discretion is an equitable determination of what is just and proper under the

 3 circumstances; judicial discretion is abused when the action taken is arbitrary and

 4 capricious.”). In the specific context of deciding Rule 1-041(E) motions, “[d]iscretion

 5 is abused when the court exceeds the bounds of reason, all the circumstances before

 6 it being considered.” Summit Elec. Supply Co., Inc. v. Rhodes & Salmon, P.C., 2010-

 7 NMCA-086, ¶ 6, 148 N.M. 590, 241 P.3d 188 (internal quotation marks and citation

 8 omitted). “Abuse of discretion has been found where dismissal [under Rule 1-041(E)]

 9 results in an injustice and special circumstances impeded a plaintiff’s prosecution of

10 his claim, or where a claim is being pursued actively after a prior lapse in activity.”

11 Id. ¶ 9 (alteration, internal quotation marks, and citation omitted). Abuse of discretion

12 has also been found where a tentative trial date had been set and the district court had

13 “been apprised of [the] plaintiff’s readiness to try the case.” Jones v. Montgomery

14 Ward & Co., 1985-NMSC-062, ¶ 16, 103 N.M. 45, 702 P.2d 990. However, when a

15 case is not ready for trial and the plaintiff has taken no significant action, nor been

16 excusably prevented from acting, for more than two years, a district court does not

17 abuse its discretion in granting a defendant’s Rule 1-041(E)(1) motion. Cf. Jones,

18 1985-NMSC-062, ¶¶ 15-16 (holding that where it was “apparent that the case was




                                               8
 1 ready for trial[,]” the district court abused its discretion in dismissing the case for

 2 failure to prosecute).

 3   {13}   Petitioner identifies one aspect of the district court’s decision that it argues

 4 “would seem to render the [o]rder of [d]ismissal null and void and nugatory.”

 5 According to Petitioner, the district court abused its discretion by failing to take into

 6 consideration Petitioner’s request for setting a Rule 1-016 status conference prior to

 7 entering its order of dismissal. It is true that this Court has said that even where a

 8 request for trial setting is filed after the motion to dismiss, as happened in this case,

 9 “it should be considered [by the district court] in determining the propriety of the

10 dismissal.” Sewell v. Wilson, 1982-NMCA-017, ¶ 36, 97 N.M. 523, 641 P.2d 1070.

11 However, a district court’s decision to grant a motion to dismiss even where a plaintiff

12 immediately requests a trial setting after the motion was filed is not a per se abuse of

13 discretion. See id. (explaining that even though district courts should consider the

14 request, “[t]his is not to say that a plaintiff can avoid dismissal by racing to the

15 courthouse with a setting request after defendant has moved under Rule [1-041(E)]”);

16 see also Cottonwood Enters., 1989-NMSC-064, ¶ 10 (“[T]he filing for a trial date

17 does not per se mandate that the [Rule] 1-041[(E)] motion must be denied.”); Stoll v.

18 Dow, 1986-NMCA-134, ¶ 12, 105 N.M. 316, 731 P.2d 1360 (explaining that “the fact




                                                9
 1 that [the] plaintiff had filed a request for trial setting in . . . 1973 is no obstacle to the

 2 granting of a [Rule 1-041(E)] motion to dismiss in 1984”).

 3   {14}   Here, the district court indeed considered the fact that Petitioner had filed a

 4 request for trial setting, noting that the request was filed thirty days after Respondent

 5 filed its motion to dismiss. The district court described the filing of that request as

 6 Petitioner’s “sole act to bring its claim to trial or other final disposition” since

 7 September 20, 2011. Because the district court also considered—and rejected—the

 8 other activities Petitioner proffered as evidence that it had taken “significant action”

 9 sufficient to avoid dismissal, we conclude that the district court did not abuse its

10 discretion by dismissing Petitioner’s case even where Petitioner had requested a trial

11 setting. See Martin v. Leonard Motor-El Paso, 1965-NMSC-060, ¶ 7, 75 N.M. 219,

12 402 P.2d 954 (explaining that there is no fixed standard governing “what action is

13 sufficient to satisfy the requirement of [Rule 1-041(E)], for each case must be

14 determined upon its own particular facts and circumstances”); see also Jones, 1985-

15 NMSC-062, ¶ 10 (describing the “[m]any factors [that] must be considered by the

16 district court in ruling on a motion to dismiss pursuant to Rule [1-041(E)]”).

17   {15}   Other than the foregoing, Petitioner offers no other argument and points to no

18 other alleged error in the district court’s dismissal that compels the conclusion that the

19 district court abused its discretion. Petitioner merely recites inapplicable rules and


                                                 10
 1 standards that do not govern the outcome of this case.2 As such, and because we are

 2 satisfied that dismissal is not clearly against the logic and effects of the facts and

 3 circumstances of the case, untenable, or unjustified, we hold that the district court did

 4 not abuse its discretion in granting Respondent’s motion to dismiss.

 5 II.      Whether the District Court Erred by Failing to Hold an Evidentiary
 6          Hearing Prior to Granting Respondent’s Motion to Dismiss

 7   {16}   Petitioner advances two arguments to support its contention that the district

 8 court erred in granting Respondent’s motion to dismiss without first holding a hearing:

 9 (1) that Rule 1-041(E)(1) itself required the district court to hold an evidentiary

10 hearing before it could dismiss Petitioner’s case; and (2) that the notion of

11 constitutional due process imparted that same requirement. We consider each

12 argument in turn.

            2
11           For example, Petitioner argues that “[t]here is no evidence of wrongful or
12   willful misconduct on the part of [Petitioner] in these proceedings.” The “wrongful
13   or wilful conduct” standard applies in cases where dismissal was under Rule 1-041(B),
14   not (E). See Gila Res. Info. Project v. N.M. Water Quality Control Comm’n, 2005-
15   NMCA-139, ¶¶ 40-41, 138 N.M. 625, 124 P.3d 1164. Petitioner also argues that “a
16   trial judge should reinstate a case that he dismissed sua sponte if a party can
17   demonstrate to the [c]ourt that he is ready, willing and able to proceed with the
18   prosecution of his claim and that the delay in the prosecution is not wholly without
19   justification.” However, this standard applies in cases involving a district court’s sua
20   sponte dismissal without prejudice under Rule 1-041(E)(2), not (E)(1). See Vigil v.
21   Thriftway Mktg. Corp., 1994-NMCA-009, ¶ 18, 117 N.M. 176, 870 P.2d 138.
22   Petitioner further argues that “there is [also] an issue of whether [Respondent’s]
23   interest was prejudiced by the delay,” ignoring or unaware of this Court’s clear
24   rejection of that very argument in Howell v. Anaya, 1985-NMCA-019, ¶¶ 7-9, 102
25   N.M. 583, 698 P.2d 453.

                                               11
 1 1.       Rule 1-041(E)(1) Imposes No Requirement on a District Court to Hold an
 2          Evidentiary Hearing Prior to Dismissing a Case Under That Rule

 3   {17}   Petitioner argues that Rule 1-041(E)(1) itself “contemplates a hearing upon a

 4 motion to dismiss at which the parties may present evidence on the issue of whether

 5 the plaintiff therein . . . has failed to take any action to bring such action or proceeding

 6 to its final determination for a period of two years.” According to Petitioner, “Rule 1-

 7 041(E) . . . does not state that a hearing is not necessary[,]” which Petitioner

 8 apparently construes to mean that a hearing is required. We disagree.

 9          Rule 1-041(E)(1) provides,

10                Any party may move to dismiss the action, or any counterclaim,
11          cross-claim or third-party claim with prejudice if the party asserting the
12          claim has failed to take any significant action to bring such claim to trial
13          or other final disposition within two (2) years from the filing of such
14          action or claim. An action or claim shall not be dismissed if the party
15          opposing the motion is in compliance with an order entered pursuant to
16          Rule 1-016 NMRA or with any written stipulation approved by the court.

17 In interpreting procedural rules, “we apply the same canons of construction as applied

18 to statutes and, therefore, interpret the rules in accordance with their plain meaning.”

19 N.M. Uninsured Emps. Fund v. Gallegos, 2017-NMCA-044, ¶ 15, 395 P.3d 533

20 (internal quotation marks and citation omitted). “We first look to the language of the

21 rule[,]” and “[i]f the rule is unambiguous, we give effect to its language and refrain

22 from further interpretation.” Id. (internal quotation marks and citations omitted).

23 “Appellate courts will not read language into rules which [our Supreme Court] did not

                                                12
 1 see fit to add unless it is necessary to conform to the obvious intent, or to prevent

 2 absurdity.” State v. Elam, 1989-NMCA-006, ¶ 16, 108 N.M. 268, 771 P.2d 597. The

 3 plain language of Rule 1-041(E)(1) contains no requirement that a district court hold

 4 an evidentiary hearing prior to granting a motion to dismiss under the rule. Petitioner

 5 would have us read into the rule a requirement that our Supreme Court did not see fit

 6 to include. We decline to do so.

 7   {18}   Moreover, we note that Petitioner fails to identify if and how this issue was

 8 even preserved. See Rule 12-318(A)(4) NMRA (requiring that as to each argument

 9 made on appeal, the appellant’s brief in chief “shall contain a statement of the

10 applicable standard of review . . . and a statement explaining how the issue was

11 preserved in the court below, with citations to authorities, record proper, transcript of

12 proceedings, or exhibits relied on”). Our review of the record indicates that Petitioner

13 did not seek a hearing on the motion to dismiss, either prior to the district court

14 deciding the motion or in its motion for reconsideration. See Sandoval v. Martinez,

15 1989-NMCA-042, ¶ 25, 109 N.M. 5, 780 P.2d 1152 (explaining that “[o]rdinarily . . .

16 a hearing would be the best procedure before ordering [dismissal]” but concluding that

17 the district court did not err in not holding a hearing where the plaintiff did not seek

18 a hearing). Even assuming arguendo the rule or any case construing it requires the

19 district court to hold an evidentiary hearing prior to granting a Rule 1-041(E)(1)


                                              13
 1 motion to dismiss, we conclude that Petitioner failed to invoke its purported right to

 2 a hearing, rendering the issue unpreserved. See Sandoval, 1989-NMCA-042, ¶ 25; see

 3 also Rule 12-321 NMRA (“To preserve an issue for review, it must appear that a

 4 ruling or decision by the trial court was fairly invoked.”).

 5 2.       Constitutional Due Process Also Does Not Impose an Obligation on District
 6          Courts to Hold an Evidentiary Hearing Prior to Dismissing a Case Under
 7          Rule 1-041(E)(1)

 8   {19}   Petitioner next contends that “[b]y dismissing [Petitioner’s] appeal without

 9 either notifying [Petitioner] or holding a hearing, the [district court] violated the due

10 process rights of [Petitioner] guaranteed under Amendments V and XIV of [the] U.S.

11 Constitution and the [New Mexico] Constitution.” Petitioner’s claim that it was

12 without notice or an opportunity to be heard is without merit.

13   {20}   “The essence of due process is notice and an opportunity to be heard at a

14 meaningful time and in a meaningful manner.” State ex rel. Children, Youth &

15 Families Dep’t v. Maria C., 2004-NMCA-083, ¶ 26, 136 N.M. 53, 94 P.3d 796

16 (internal quotation marks and citation omitted). “Procedural due process is ultimately

17 about fairness, ensuring that [an affected party] is notified about a proposed

18 government action and afforded the opportunity to make its voice heard before that

19 action takes effect.” Rayellen Res., Inc. v. N.M. Cultural Props. Review Comm., 2014-

20 NMSC-006, ¶ 28, 319 P.3d 639. “The amount of process due depends on the


                                              14
 1 particular circumstances of each case because procedural due process is a flexible

 2 right.” In re Pamela A.G., 2006-NMSC-019, ¶ 12, 139 N.M. 459, 134 P.3d 746.

 3   {21}   Here, Petitioner’s response to the motion to dismiss is evidence both that it was

 4 on notice of the possibility its case would be dismissed and that it had—and

 5 exercised—an opportunity to be heard. Cf. Thornfield v. First State Bank of Rio

 6 Rancho, 1983-NMCA-149, ¶¶ 15, 18, 103 N.M. 229, 704 P.2d 1105 (discussing the

 7 sanction of dismissal under Rule 1-037 NMRA and rejecting the plaintiff’s argument

 8 that he did not have notice because “[t]he fact that the sanctions are spelled out in the

 9 rule provides ample notice”). Petitioner filed a twenty-page response in which it laid

10 out its arguments as to why Respondent’s motion should not be granted. To that

11 response, Petitioner attached more than sixty pages of documents as exhibits that

12 Petitioner invited the district court to “refer to . . . as proof” of various contentions it

13 made in its response. Furthermore, after briefing was completed on Petitioner’s

14 motion for reconsideration, the district court allowed the parties to submit one

15 supplemental brief—so long as the brief did not “present arguments or evidence

16 previously submitted”—before it ruled on Petitioner’s motion to reconsider. Petitioner

17 filed (1) a supplemental brief, (2) an additional evidentiary exhibit, and (3) a sixty-

18 seven page memorandum in support of its supplemental brief. In light of all this, we

19 cannot say that the Petitioner was denied an opportunity to be heard—i.e., present


                                                15
 1 arguments and evidence to the district court—as to why its case should not be

 2 dismissed. We hold that the district court did not violate Petitioner’s constitutional

 3 right to due process by not holding a hearing prior to deciding Respondent’s motion

 4 to dismiss.

 5 CONCLUSION

 6   {22}   For the foregoing reasons, we affirm the district court’s order dismissing

 7 Petitioner’s case.

 8   {23}   IT IS SO ORDERED.



 9                                                _________________________________
10                                                J. MILES HANISEE, Judge


11 WE CONCUR:


12 _________________________________
13 MICHAEL E. VIGIL, Judge


14 _________________________________
15 HENRY M. BOHNHOFF, Judge




                                             16
