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


 2 GEORGE LEE and
 3 VIRGINIA LEE,

 4          Plaintiffs-Appellants,

 5 v.                                                                                  No. 31,902

 6 CARAWAY DRILLING,

 7          Defendant-Appellee,

 8 and

 9   FNF PROPERTIES, LLC d/b/a
10   YORK RANCH, WILD HORSE
11   DEVELOPMENT CORPORATION,
12   WILD HORSE RANCH, LLC,
13   and JOHN DOES 1-5,

14          Defendants.

15 APPEAL FROM THE DISTRICT COURT OF SIERRA COUNTY
16 Matthew G. Reynolds, District Judge

17 Carter & Valle Law Firm, PC
18 Richard J. Valle
19 Albuquerque, NM

20 for Appellants

21 Madison & Mroz, P.A.
 1 Gregory D. Steinman
 2 Minal K. Patni
 3 Albuquerque, NM

 4 for Appellee
 5                            MEMORANDUM OPINION

 6 VIGIL, Judge.

 7        Appellants George and Virginia Lee (Plaintiffs) appeal from the district court’s

 8 summary judgment ruling that dismisses their complaint for negligence [RP Vol.I/1]

 9 against Appellee Caraway Drilling (Defendant) on the basis that, as a matter of law,

10 there was no evidence to show that Defendant was negligent. [RP Vol.II/452] Our

11 notice proposed to affirm. Defendant filed a memorandum in support, and Plaintiffs

12 filed a memorandum in opposition. We are not persuaded by Plaintiffs’ arguments,

13 and therefore affirm.

14        Plaintiffs continue to argue that the district court erred in granting summary

15 judgment in favor of Defendant. [DS 3-4; MIO 1-4] We review the district court's

16 granting of summary judgment de novo. Self v. United Parcel Serv., Inc., 1998-

17 NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. Plaintiffs’ theory of the case below

18 [RP Vol.II/351] was that the well was drilled through strata containing methane gas

19 [RP Vol.I/3], and methane rose from the unsealed wellhead [RP Vol.I/3] into the

20 unvented well house [RP Vol.I/4], which resulted in an explosion when the unshielded

21 switch in the well house threw a spark. [RP Vol.I/4; II/350-51; DS 2-3] In support

                                              2
 1 of their position, Plaintiffs maintained that a well drilled through an area known to

 2 contain coal would be a cause for concern. [RP Vol.II/382, 384, 385, 387] Plaintiffs

 3 maintained also that Defendant, as a drilling company, should have known of the

 4 danger presented by flammable gas [RP Vol.II/381-82] and the risk of it accumulating

 5 in a well. [RP Vol.II/382]

 6        While Plaintiffs referred to case law for the proposition that “as the risk of

 7 danger increases, the duty of care also increases” [RP Vol.II/382; DS 5], they did not

 8 develop facts or arguments below or on appeal how this blanket legal proposition

 9 applies to Defendant. As presented in Defendant’s summary judgment pleadings [RP

10 Vol.2/349, 432] and extensively detailed in our notice, while Defendant may have

11 been aware of flammable gas at the well site [DS 4], the undisputed facts do not

12 support a conclusion that it breached a duty in connection to this knowledge. To this

13 end, the undisputed facts provide that Defendant complied with instructions from an

14 engineering company for drilling the well, and there was no evidence presented that

15 Defendant breached any duty by not enclosing the well casing. To the extent

16 Plaintiffs believe that the unvented well house caused the explosion from the

17 accumulated gas [DS 2; RP Vol.I/4], there was no evidence that Defendant was

18 responsible for or in any way facilitated the construction of the well house. [RP

19 Vol.II/354] Nor was there any evidence presented to show that, even if Defendant had



                                             3
 1 breached a duty, that such breach caused the accident. In this regard, the facts are

 2 undisputed that Defendant, two months before the accident, told the Land Association,

 3 of which Plaintiff George Lee is on the Board of Directors [RP Vol.II/350], not to use

 4 the well. [RP Vol.II/351, 354] In sum, Plaintiffs failed to present any facts to show

 5 that Defendant owed any duty to Plaintiffs, that Defendant breached a duty, or that

 6 such a breach caused Plaintiffs’ damages. [RP Vol.I/349, 353] See generally Herrera

 7 v. Quality Pontiac, 2003-NMSC-018, ¶ 6, 134 N.M. 43, 73 P.3d 181 (setting forth

 8 requisite elements for a negligence claim).

 9        As discussed in our notice, Plaintiffs’ reference to their attorney’s affidavit did

10 not satisfy their burden to show the existence of a genuine issue of fact. While the

11 affidavit of Plaintiff’s attorney indicates that an unnamed, licensed New Mexico well

12 driller indicated that the presence of coal should cause a drilling company to be

13 concerned about the possibility of flammable gas accumulating in a well [RP

14 Vol.II/393], the information relayed in the affidavit is not based upon the attorney’s

15 personal knowledge. See Rule 1-056(E) NMRA (providing that supporting and

16 opposing affidavits must be based on personal knowledge). Apart from this, the

17 general information provided in the affidavit nonetheless does not indicate that

18 Defendant failed to exercise ordinary care in drilling the well in light of the presence

19 of gas in the area.



                                               4
 1        In apparent recognition that the information in its affidavit was insufficient to

 2 show that Defendant breached a duty, Plaintiffs’ affidavit states that “Plaintiff has

 3 already consulted with a licensed New Mexico well driller . . . [who] requires more

 4 information before reaching opinions in this matter” [RP Vol.2/384] and “[m]ore

 5 discovery is needed to determine [Defendant’s] breach of duty.” [RP Vol.II/385, 386,

 6 388, 389; MIO 3] Related to this, in their memorandum in opposition, Plaintiffs raise

 7 a specific argument that was not presented in their docketing statement, namely, that

 8 they should have been given a continuance for additional discovery under Rule

 9 1-056(F) to develop facts in support of their view that Defendant breached their duty

10 of care. [MIO 3] We view this argument as a motion to amend, and deny it for the

11 reasons that follow.

12        The explosion that is the subject of this suit occurred on September 16, 2007

13 [RP Vol.1/3]; Plaintiffs’ lawsuit was filed in May 22, 2009 [RP Vol.1/1]; Defendant

14 filed its motion for summary judgment on March 25, 2011 [RP Vol.2/349] and its

15 reply in support of its motion on June 6, 2011. [RP Vol.2/432] The summary

16 judgment hearing was not set until five months after Defendant’s reply. [RP

17 Vol.2/450] As such, there was ample time for Plaintiffs to conduct any requisite

18 discovery. [MIS 6-7] Moreover, Plaintiffs made no specific assertion below

19 regarding what type of evidence they needed to elicit from their unnamed expert.



                                              5
 1 Plaintiffs, for the first time on appeal, provide that they expected to develop facts

 2 relating to engineering practices with regard to the ventilation of well pits. [MIO 3]

 3 But even though Plaintiffs were given ample time to elicit such facts below, they

 4 failed to do so. For this reason, the district court did not err in denying Plaintiffs’

 5 request for additional time for discovery. See generally Bierner v. City of Truth or

 6 Consequences, 2004-NMCA-093, ¶ 25, 136 N.M. 197, 96 P.3d 322 (applying factors

 7 to consider in determining if summary judgment has been granted prematurely, which

 8 include a consideration of whether the nonmoving party had sufficient time to conduct

 9 necessary discovery and whether the nonmoving party gave the court certain

10 information about the particular evidence it still needed). We accordingly deny

11 Plaintiff’s motion to amend. See State v. Sommer, 118 N.M. 58, 60, 878 P.2d 1007,

12 1009 (Ct. App. 1994) (issues sought to be presented in a motion to amend must be

13 viable).

14        For the reasons discussed above and in our notice, we affirm.

15        IT IS SO ORDERED.

16                                                _______________________________
17                                                MICHAEL E. VIGIL, Judge
18 WE CONCUR:



19 _________________________________
20 MICHAEL D. BUSTAMANTE, Judge

                                              6
1 _________________________________
2 CYNTHIA A. FRY, Judge




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