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

 2 NORBERT A. SCHUELLER,

 3      Plaintiff/Petitioner-Appellant,

 4 v.                                                                           No. A-1-CA-37265

 5 BRENDA ALBERTS, BEATRICE BELL,
 6 and NANCY C. SANCHEZ,

 7      Defendants-Appellees,

 8 and

 9   COUNTY OF VALENCIA,
10   DANNY P. MONETTE,
11   BEATRICE BELL, and
12   NANETTE SANCHEZ,

13      Respondents-Appellees.

14 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
15 Cindy M. Mercer, District Judge

16 Norbert A. Schueller
17 Belen, NM

18 Pro Se Appellant

19 Daniel J. Macke
20 Rio Rancho, NM
 1 for Appellees

 2                             MEMORANDUM OPINION

 3 VANZI, Chief Judge.

 4   {1}   Plaintiff, a self-represented litigant, appeals from the district court’s order

 5 granting Defendants’ and Respondents’ motion to dismiss and dismissing Plaintiff’s

 6 complaint with prejudice. In this Court’s notice of proposed disposition, we proposed

 7 to summarily affirm. Plaintiff filed a memorandum in opposition (MIO), which we

 8 have duly considered. Remaining unpersuaded, we affirm.

 9   {2}   In his memorandum in opposition, Plaintiff continues to argue that the district

10 court erred in granting the motion to dismiss with prejudice pursuant to the Tort

11 Claims Act’s immunity provision essentially because defamation could not possibly

12 be within the scope of Defendants’ duties since defamation could not have been

13 authorized as a duty. [See MIO 10-19] However, as we explained in our calendar

14 notice and as the case law cited by Plaintiff reiterates, it is not that Defendants’

15 purportedly tortious acts needed to be authorized in order to be deemed within the

16 scope of their duties, but that Defendants needed to be acting within the scope of their

17 duties when they purportedly committed the tortious act. [See MIO 11-13; CN 4-6]

18 See Celaya v. Hall, 2004-NMSC-005, ¶¶ 22-26, 135 N.M. 115, 85 P.3d 239. In the

19 present case, according to the information before the district court, Defendants were



                                              2
 1 at work and working for Valencia County when they purportedly committed the

 2 defamation. [See RP 13; CN 6] As such, they were acting within the scope of their

 3 duties as employees of Valencia County when they purportedly committed such act.

 4 See id. ¶ 28. Accordingly, they are immune from Plaintiff’s lawsuit pursuant to

 5 NMSA 1978, Section 41-4-4 (2001); such immunity has not been waived pursuant to

 6 NMSA 1978, Sections 41-4-5 through -12 (1976, as amended through 2007); and the

 7 complaint was properly dismissed with prejudice. [See id.] See id.

 8   {3}   Plaintiff does note via two footnotes that Defendants were not, in fact, working

 9 during the time that they purportedly committed the defamation and that they just

10 happened to be on county property at the time. [MIO 2 n.3-4] However, Plaintiff does

11 not point out where this information was brought to the attention of the district court,

12 and, after reviewing the record, we have not found any reference to such information

13 in the materials presented to the district court. As this Court may not consider new

14 information on appeal, we decline to consider these purported facts further. See

15 Durham v. Guest, 2009-NMSC-007, ¶ 10, 145 N.M. 694, 204 P.3d 19 (stating that the

16 “reference to facts not before the district court and not in the record is inappropriate

17 and a violation of our Rules of Appellate Procedure” and declining to consider a

18 party’s new factual assertions on appeal); see also Rule 12-321(A) NMRA (stating

19 that, “[t]o preserve an issue for [appellate] review, it must appear that a ruling or



                                               3
 1 decision by the trial court was fairly invoked”); Benz v. Town Ctr. Land, LLC, 2013-

 2 NMCA-111, ¶ 24, 314 P.3d 688 (“To preserve an issue for review on appeal, it must

 3 appear that appellant fairly invoked a ruling of the trial court on the same grounds

 4 argued in the appellate court.” (internal quotation marks and citation omitted)).

 5   {4}   Plaintiff has not otherwise asserted any facts, law, or argument in his

 6 memorandum in opposition that persuade this Court that our notice of proposed

 7 disposition was erroneous. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124

 8 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly held that, in summary calendar

 9 cases, the burden is on the party opposing the proposed disposition to clearly point out

10 errors in fact or law.”); State v. Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421,

11 759 P.2d 1003 (stating that a party responding to a summary calendar notice must

12 come forward and specifically point out errors of law and fact, and the repetition of

13 earlier arguments does not fulfill this requirement), superseded by statute on other

14 grounds as stated in State v. Harris, 2013-NMCA-031, ¶ 3, 297 P.3d 374. We

15 therefore refer Plaintiff to our analysis therein.

16   {5}   Accordingly, for the reasons stated in our notice of proposed disposition and

17 herein, we affirm the district court’s order.

18   {6}   IT IS SO ORDERED.


19


                                               4
1                             LINDA M. VANZI, Chief Judge

2 WE CONCUR:


3
4 J. MILES HANISEE, Judge


5
6 JENNIFER L. ATTREP, Judge




                                5
