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

 2 TED R. CASTILLO,

 3          Plaintiff-Appellant,

 4 v.                                                     NO. 33,153

 5 RONALD HOUVENER, BILLIE JO,
 6 HOUVENER, and LESLIE HOUVENER,

 7          Defendants-Appellees.

 8 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 9 Nan G. Nash, District Judge

10 Ted R. Castillo
11 Albuquerque, NM

12 Pro Se

13 The Turner Law Firm, LLC
14 Scott E. Turner
15 Albuquerque, NM

16 The Garrison Law Firm, LLC
17 Jacob A. Garrison
18 Albuquerque, NM

19 for Appellees

20                                 MEMORANDUM OPINION
 1 ZAMORA, Judge.

 2   {1}   This appeal initially involved a dispute between neighbors regarding an

 3 easement. [DS 1] Prior to briefing, however, the parties participated in voluntary

 4 mediation and executed a memorandum of understanding laying out a settlement to

 5 their dispute. [DS 8-9] More specifically, that memorandum established a method by

 6 which the parties were to determine the boundaries of the easement and various

 7 actions that the parties would take to resolve their dispute regarding that easement.

 8 [RP 228-29] That memorandum also recited that “[t]he terms of this memorandum

 9 agreement shall be memorialized in a settlement agreement and release, and

10 incorporated into [a contemplated] amended judgment.” [Id.] During the process of

11 negotiating the language of that settlement agreement, a dispute arose between the

12 parties regarding the meaning and enforceability of the memorandum of

13 understanding. [DS 9] Eventually, this Court remanded the case back to the district

14 court so that the parties could get a ruling on whether or not the memorandum was

15 an enforceable contract. [DS 10] The district court answered that question in the

16 affirmative, and Plaintiff brought this second appeal from that court. [Id.]

17   {2}   In this second appeal, Plaintiff’s supplemental docketing statement asserted

18 issues related both to the memorandum of understanding and issues arising out of the

19 earlier trial that was the subject of that memorandum. [SDS 10-28] Our most recent

                                             2
 1 calendar notice proposed to affirm the district court’s ruling regarding the

 2 memorandum and also proposed that issues related to the prior trial were rendered

 3 moot by the parties’ settlement of their underlying dispute. [3CN 2] Plaintiff has since

 4 filed a memorandum in opposition to summary disposition and a letter to the Court,

 5 both of which assert Plaintiff’s disagreement with this Court’s proposed disposition

 6 as well as various issues arising over the entire course of this litigation. Having

 7 considered Plaintiff’s filings in this Court, we are unpersuaded and now affirm.

 8   {3}   With regard to Plaintiff’s argument that the memorandum was not a contract,

 9 Plaintiff argues that he did not intend for it to be an agreement, that it does not

10 “indicate that it is an agreement nor that it is binding,” that it was not supported by

11 an offer, an acceptance, mutual agreement, and consideration [MIO ¶ 2], and that

12 “[a]n agreement has never been reached” [LTR ¶ 7]. Plaintiffs argument on this point,

13 however, consists entirely of the undeveloped assertions just quoted. Apart from

14 simply reasserting his opinion that the memorandum of understanding is not an

15 enforceable contract, Plaintiff does not explain how the facts of this case or the

16 applicable law can lead to the conclusion he would like from this Court. See State v.

17 Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d 1003 (stating that “[a]

18 party responding to a summary calendar notice must come forward and specifically

19 point out errors of law and fact,” and the repetition of earlier arguments does not


                                              3
 1 fulfill this requirement), superseded by statute on other grounds as stated in State v.

 2 Harris, 2013-NMCA-031, ¶ 3, 297 P.3d 374. We, therefore, hold that the

 3 memorandum of understanding consists of an accepted offer to settle the parties’

 4 disputes. The document, itself, which is signed by the parties, consists of validly

 5 exchanged promises by the parties to perform specific actions in consideration of one

 6 another’s performance of their mutually assumed obligations. As such, the

 7 memorandum is an enforceable contract. See Strausberg v. Laurel Healthcare

 8 Providers, LLC, 2013-NMSC-032, ¶ 42, 304 P.3d 409 (noting that proof of a contract

 9 is accomplished by a showing that “the contract is factually supported by an offer, an

10 acceptance, consideration, and mutual assent” (internal quotation marks and citation

11 omitted)).

12   {4}   Plaintiff also asserts that “Defendant’s assertion before the district court that

13 . . . Plaintiff breached the terms of the [memorandum of understanding] by failing to

14 obtain the survey is fraudulent.” [MIO ¶ 3] Although it appears from the record that

15 Defendants may have presented evidence that Plaintiff did not obtain a survey [RP

16 223, 237, 244-48], and our calendar notice made reference to Defendants’ assertions

17 in that regard [3CN 4-5], the question of whether Plaintiff did so or not is not

18 ultimately relevant to the question at hand, which is solely whether the memorandum

19 is an enforceable contract.


                                               4
 1   {5}   The remainder of the issues asserted by Plaintiff in his memorandum and letter

 2 involve matters not asserted in his docketing statement. We construe Plaintiff’s

 3 assertion of these issues as a motion to amend his docketing statement to raise

 4 additional isses. In order to show good cause for our allowance of an amendment to

 5 a docketing statement, an appellant must establish: (1) that the motion is timely, (2)

 6 that the new issues to be raised were either (a) properly preserved below or (b)

 7 allowed to be raised for the first time on appeal, and (3) that the issues raised are

 8 viable. State v. Moore, 1989-NMCA-073, ¶ 42, 109 N.M. 119, 782 P.2d 91, overruled

 9 on other grounds by State v. Salgado, 1991-NMCA-044, ¶ 2, 112 N.M. 537, 817 P.2d

10 730.

11   {6}   The issues that Plaintiff seeks to raise in this appeal, however, are not viable.

12 Many of those issues involve or are based upon facts and assertions that do not appear

13 anywhere in the record of this case. [See MIO ¶¶ 4, 8, 9, 10, 11, 12, 16; LTR ¶ 2]

14 Plaintiff does not suggest that these issues were put before the district court, and, in

15 any event, it is well-established that “[m]atters outside the record present no issue for

16 review.” State v. Reynolds, 1990-NMCA-122, ¶ 16, 111 N.M. 263, 804 P.2d 1082.

17 Many other issues that Plaintiff seeks to raise involve his prior trial in the district

18 court. [See MIO ¶¶ 5, 6, 7, 13, 14, 17] Because we are affirming the district court’s

19 ruling that the memorandum of understanding constitutes a valid and enforceable


                                               5
 1 settlement of the claims raised in that trial, however, any issues arising from that trial

 2 are rendered moot by the memorandum, itself. [3CN 2] And, finally, Plaintiff’s

 3 remaining issues are completely undeveloped arguments consisting entirely of bare

 4 assertions that the memorandum “is being used . . . to outsmart and swindle the

 5 Plaintiff,” and that the State “has an obligation to protect its citizens from fraudulent

 6 use of the courts.” [MIO 1, 15] It is not the proper role of this Court to engage in

 7 speculation and surmise to construct an appellate argument for a party. See Headley

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

 9 (declining to review undeveloped arguments).

10   {7}   As the new issues asserted by Plaintiff are not viable, we deny Plaintiff’s

11 motion to amend his docketing statement and affirm the order of the district court

12 holding that the memorandum of understanding is valid and enforceable.

13   {8}   IT IS SO ORDERED.


14
15                                          M. MONICA ZAMORA, Judge

16 WE CONCUR:



17
18 JAMES J. WECHSLER, Judge



                                               6
1
2 STEPHEN G. FRENCH, Judge




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