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


 2 ANDERSON HILLS HOMEOWNERS
 3 ASSOCIATION, INC.,

 4       Plaintiff-Appellee,

 5 v.                                                                     NO. 28,666

 6 RIEMA AULD,

 7       Defendant-Appellant.

 8 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 9 Richard J. Knowles, District Judge

10 Landry & Ludewig LLP
11 Margaret C. Ludewig
12 Albuquerque, NM

13 for Appellee

14 Riema Auld
15 Albuquerque, NM

16 Pro Se Appellant



17                             MEMORANDUM OPINION

18 CASTILLO, Judge.

19       Defendant appeals from the district court’s entry of summary judgment against

20 her. We issued a calendar notice proposing summary affirmance on January 20, 2009.
 1 Defendant has responded with a memorandum in opposition to our proposed

 2 disposition. Defendant has also filed several motions with this Court. We have

 3 considered the arguments made in Defendant’s memorandum in opposition, and we

 4 remain unpersuaded. We therefore affirm the district court’s entry of summary

 5 judgment. Additionally, as discussed further below, we see no basis to grant any of

 6 Defendant’s motions, and they are therefore denied.

 7        We will begin with Defendant’s motions. On March 18, 2009, Defendant filed

 8 a motion requesting new trial on the grounds of newly discovered evidence post trial

 9 and breach of discovery. Rule 1-059 NMRA governs the proper procedure and time

10 line for making such a motion. We do not address a motion for new trial made for the

11 first time on appeal, and this motion is denied. Defendant also filed a motion to

12 prevent entry of final judgment by Court of Appeals of all matters relating to claim

13 #28666 (District Case # CV200708750) due to evidence (plot plan) withheld by

14 Plaintiff in breach of rules 37, 31, 34 and the constitutional right and laws to due

15 process and fraud published with the City of Albuquerque Zoning Department

16 defining Plaintiff’s property ownership as being owned by DR Horton to obtain a

17 permit and a motion requesting new trial to address Defendants request for sanctions

18 due to breach of discovery, newly discovered evidence, and published fraud. With

19 respect to Defendant’s request that we prevent entry of final judgment below, we note


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 1 that a final judgment has been entered by the district court in this case, and it is from

 2 that final judgment that Defendant appeals. The substance of Defendant’s motions

 3 appears to be that evidence was withheld by Plaintiffs and that this Court should

 4 consider that evidence on appeal. However, Defendant has made these requests by

 5 previous motions to this Court, and those motions were denied on the basis that we do

 6 not review or impose sanctions for discovery violations for the first time on appeal,

 7 and we do not consider new evidence on appeal.                See Largo v. Atchison,

 8 2002-NMCA-021, ¶ 33, 131 N.M. 621, 41 P.3d 347 (stating that materials not before

 9 the court when it granted summary judgment will not be considered for the first time

10 on appeal). For these same reasons, Defendant’s renewed motions are denied.

11        Defendant also filed a motion requesting that all undecided motions are heard

12 and decided upon by the trial court with the inclusion of the newly discovered

13 evidence with-held by Plaintiff in the trial court and the fraud perpetrated to obtain a

14 permit from the COA zoning.           We construe this document as Defendant’s

15 memorandum in opposition as it responds to this Court’s calendar notice proposing

16 summary affirmance. We deny the request to consider evidence that was not before

17 the district court. Finally, Defendant filed a motion on May 6, 2009, requesting

18 summary reversal and again requesting imposition of sanctions for discovery

19 violations and that we consider evidence that was withheld below. For the reasons


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 1 discussed above, we deny this request. This document also responds to our proposed

 2 summary affirmance. However, our rules of appellate procedure do not allow for the

 3 filing of multiple memoranda in opposition, so we will address the first memorandum

 4 in opposition filed on March 18, 2009. See Rule 12-210(D)(3) (stating that counsel

 5 shall have twenty days from service of the notice of proposed disposition to file “a

 6 memorandum” opposing the summary disposition). We now turn to the merits of

 7 Defendant’s appeal.

 8        “Summary judgment is appropriate where there are no genuine issues of

 9 material fact and the movant is entitled to judgment as a matter of law. . . . We review

10 these legal questions de novo.” Self v. United Parcel Serv., Inc., 1998-NMSC-046,

11 ¶ 6, 126 N.M. 396, 970 P.2d 582 (citation omitted). “The movant need only make a

12 prima facie showing that he is entitled to summary judgment. Upon the movant

13 making a prima facie showing, the burden shifts to the party opposing the motion to

14 demonstrate the existence of specific evidentiary facts which would require trial on

15 the merits.” Roth v. Thompson, 113 N.M. 331, 334-35, 825 P.2d 1241, 1244-45

16 (1992) (citations omitted). A party opposing summary judgment may not simply

17 argue that evidentiary facts requiring a trial on the merits may exist, “nor may [a

18 party] rest upon the allegations of the complaint.” Dow v. Chilili Coop. Ass’n, 105

19 N.M. 52, 54-55, 728 P.2d 462, 464-65 (1986).


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 1        In this case, Plaintiff sought an injunction and declaratory judgment to establish

 2 that a wall located between Plaintiff’s property and Defendant’s property was located

 3 within the boundaries of Plaintiff’s property. In support of Plaintiff’s motion for

 4 summary judgment, Plaintiff introduced a survey that indicated that the wall between

 5 Plaintiff’s property and Defendant’s property did not conform to the actual property

 6 boundary and that the wall was located entirely on Plaintiff’s tract. [Exhibit 1]

 7 Plaintiff’s survey was sufficient to establish the location of the property boundary.

 8 See Lopez v. Adams, 116 N.M. 757, 761, 867 P.2d 427, 431 (Ct. App. 1993)

 9 (affirming the district court’s determination of a property boundary based on a

10 boundary survey). Once Plaintiff introduced this evidence, Defendant bore the burden

11 of introducing evidence that would demonstrate the existence of a factual issue

12 requiring trial on the merits. See Roth, 113 N.M. at 334-35, 825 P.2d at 1244-45

13 (discussing burdens on movant and non-movant in summary judgment proceedings).

14 Based on our review of the record, Defendant did not introduce any competent

15 evidence to dispute Plaintiff’s survey. Additionally, at the hearing on the summary

16 judgment motion, the district court gave Defendant thirty days in which to obtain a

17 survey contradicting the results of Plaintiff’s survey, and Defendant failed to do so.

18 [RP 270-71]

19        Defendant argues that she did introduce evidence disputing Plaintiff’s survey.


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 1 Defendant points to several documents that she submitted to the district court to

 2 demonstrate that the land she purchased from DR Horton included the land up to the

 3 wall. First, Defendant submitted a document entitled DR Horton Blossom Ridge

 4 Estates Included Feature Package, which has language stating “Block garden walls

 5 and gates are intended to provide a defined rear yard area but are not intended to

 6 provide complete privacy, security or protection for or from pets.” [RP 33-34]

 7 However, this is not evidence that the property line between Defendant’s tract and the

 8 HOA’s tract is defined by the wall and therefore does not raise a genuine issue of

 9 material fact regarding the property boundary. Next, Defendant submitted portions

10 of the Declarations of Covenants, Conditions and Restrictions for Anderson Hills

11 Master Plan with language stating “Privacy walls are those walls constructed along

12 the individual lot property lines between lots.” [RP 35] However, based on our

13 review of the record, the wall in question is not a privacy wall, but rather a

14 “community perimeter wall.”        The evidence Defendant submitted relating to

15 community perimeter walls does not contain an assertion that the community

16 perimeter walls conform to the property line. Defendant submitted evidence that

17 “[t]he Association and Owner whose property abuts the perimeter wall will

18 structurally and cosmetically maintain the Community Perimeter Wall(s).” However,

19 this is not evidence that the wall between the two tracts conforms to the property


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 1 boundary. [RP 37] Finally, Defendant points to the Improvement Location Report

 2 for the property which she argues indicates that the property line is defined by the

 3 wall. The Improvement Location Report contains a section “Specific physical

 4 evidence of boundary lines on all sides” with the words “See Above Sketch” typed

 5 next to it. [RP 11] The sketch appears to indicate that the wall between the tracts is

 6 on Plaintiff’s property. Defendant argues however, that the Improvement Location

 7 Report must be referring to the wall as evidence of the property boundary because it

 8 could not be referring to anything else. [MIO 3] We disagree that this raises an issue

 9 of fact regarding the property boundary between the two tracts. The report does not

10 contain any statement or assertion that the wall is on the boundary of the two tracts.

11 [RP 11] For these reasons, we hold that Defendant’s submissions do not create a

12 genuine issue of material fact that would preclude entry of summary judgment. We

13 therefore affirm the district court.

14        We understand that Defendant asserted below in her response to the HOA’s

15 complaint that her property was represented and sold to her as containing the land up

16 to the wall between her tract and the HOA’s tract. Defendant also argued that the

17 HOA essentially acquiesced in the property boundary being determined by the

18 location of the wall by its conduct. Defendant also makes these arguments on appeal.

19 Defendant notes that the HOA acted as if the wall was the boundary between the two


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 1 tracts for several years and stood by silently while Defendant maintained the land on

 2 her side of the wall. [MIO 5-7] See Tresemer v. Albuquerque Pub. Sch. Dist., 95

 3 N.M. 143, 144, 619 P.2d 819, 820 (1980) (discussing the doctrine of acquiescence).

 4 However, based on our review of the record, Defendant did not introduce affidavits

 5 or any other form of competent evidence to support these allegations. See Gallegos

 6 v. State, 107 N.M. 349, 352-53, 758 P.2d 299, 302-03 (Ct. App. 1987) (stating that

 7 when a motion for summary judgment is made and supported, an adverse party may

 8 not rest upon the mere allegations of his pleading, but must set forth specific facts

 9 showing there is a genuine issue for trial by affidavits or otherwise); Dow, 105 N.M.

10 at 54-55, 728 P.2d at 464-65 (stating that a party opposing summary judgment may

11 not simply argue that evidentiary facts requiring trial on the merits exist, nor may it

12 rely on allegations of the complaint). Defendant’s allegations in her response to

13 Plaintiff’s complaint are not competent to raise an issue of material fact.

14        For these reasons, we affirm the district court’s grant of summary judgment in

15 favor of Plaintiff.

16        IT IS SO ORDERED.



17                                                ________________________________
18                                                CELIA FOY CASTILLO, Judge




                                              8
1 WE CONCUR:



2 _________________________________
3 MICHAEL D. BUSTAMANTE, Judge



4 _________________________________
5 ROBERT E. ROBLES, Judge




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