Aguilar v. Finalosky
| Decision Date | 05 October 2016 |
| Docket Number | No. 35,281,35,281 |
| Parties | REGINAL AGUILAR, Plaintiff-Appellant, v. LOU FINALOSKY, Defendant-Appellee. |
| Court | Court of Appeals of New Mexico |
This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Reginal Aguilar
Albuquerque, NM
Pro se Appellant
Gregory Gahan
Albuquerque, NM
for Appellee
{1} Plaintiff has appealed from the dismissal of the case with prejudice. We previously issued a notice of proposed summary disposition in which we proposed to affirm. Plaintiff has filed a memorandum in opposition, which we have duly considered. Because we remain unpersuaded, we affirm.
{2} We will avoid unnecessary reiteration here, focusing instead on the substantive content of the memorandum in opposition.
{3} Plaintiff no longer asserts that any matters remain pending before the district court. [MIO 1] Accordingly, Plaintiff's sixth issue has been abandoned.
{4} With respect to Plaintiff's first issue, as we previously observed, Plaintiff's failure to appear at the final pretrial hearing was not the basis for the dismissal of the action. [SRP 718-22] Plaintiff appears to agree. [MIO 1] We therefore conclude that this supplies no basis for any assertion of error.
{5} With respect to the second, third, and fourth issues, Plaintiff continues to argue that the district court erred in precluding him from testifying at trial as a consequence of his failure to list himself as a witness and fulfill related discovery obligations. [MIO 2-12] He contends that insofar as he was a party, he should not be classifiable as a witness. [MIO 2-6] However, an individual may be both a party and a witness; these classifications are in no way mutually exclusive. Plaintiff was unquestionably a party, and to the extent that he wished to testify, Plaintiff was also a putative witness. SeeBlack's Law Dictionary 1838 (10th ed. 2014) (defining "witness" so as to encompass any person who gives testimony under oath or affirmation). Insofar as Plaintiff failed to list himself as a witness, despite his obligation to do so under the Rules of Civil Procedure and the terms of the last relevant scheduling order, [RP 584] see Rule 1-026(B)(3) NMRA (), it was well within the district court's discretion to preclude him from testifying. See Rule 1-037(B)(2) NMRA (); and see, e.g., Lewis ex rel. Lewis v. Samson, 2001-NMSC-035, ¶¶ 13-17, 131 N.M. 317, 35 P.3d 972 (); Sanchez v. Borrego, 2004-NMCA-033, ¶ 19, 135 N.M. 192, 86 P.3d 617 (); Herrera v. Springer Corp., 1976-NMCA-015, ¶¶ 13-16, 89 N.M. 45, 546 P.2d 1202 (); and see generally Wirth v. Commercial Res., Inc., 1981-NMCA-057, ¶ 20, 96 N.M. 340, 630 P.2d 292 ().
{6} Plaintiff contends that the foregoing authorities do not provide support for the district court's ruling in this case because they address the exclusion of witnesses who were not parties. [MIO 6-7] Plaintiff asserts that "this kind of citation reflects the same thing as the district court did in citing to cases as well as to isolated passages out of context that have no pointed relevance . . . except to address the issue in a rather general manner[.]" [MIO 6] However, the application of general principles of law, in an evenhanded and uniform fashion, is a function of the courts. In this case, the rules and cases cited establish and illustrate principles of broad application, which are equally applicable to any situation in which a party (i.e., Plaintiff) has failed to comply with discovery and scheduling obligations (i.e., by failing to formally identify all individuals whose testimony he intends to present, together with the subject matter and substance of their testimony). Although Plaintiff appears to believe that he was entitled to an exception which would take him outside these general rules of universal application, we find no support for his position. We specifically note that, contrary to Plaintiff's assertion, the opinion in Lewis, 2001-NMSC-035, is not supportive of Plaintiff's argument. [MIO 7] Lewis does not indicate one way or the other whetherthe plaintiff listed herself as a witness, intended to appear as a witness, or ever testified. As such, neither Lewis, nor any other authority of which we are aware supplies support for Plaintiff's assertion that a party-plaintiff should be excused from complying with the rules of discovery relative to his or her own testimony. We therefore reject Plaintiff's argument. See generally Cordova v. Cline, 2013-NMCA-083, ¶ 28, 308 P.3d 975 ().
{7} By the fifth issue (partially combined with his discussion of the second, third, and fourth issues), we understand Plaintiff to contend that the dismissal of the action was an unduly harsh sanction for the discovery violation. [MIO 8-12] We understand Plaintiff to relatedly argue that the equities do not support the severe sanction of dismissal of the action, on the theory that lesser sanctions might have sufficed. [MIO 13-14] However, "the trial court is not required to exhaust less severe sanctions in imposing a just remedy for a violation of discovery rules." Lewis, 2001-NMSC-035, ¶ 13. In light of the district court's finding that Plaintiff's discovery violations were willful, and would have given him tactical advantage in the form of unfair surprise, [SRP 721-22] the district court's ultimate ruling is affirmable. See generally D'Antonio v. Garcia, 2008-NMCA-139, ¶ 17, 145 N.M. 95, 194 P.3d 126 () (alteration, internal quotation marks, and citation omitted)); Allred ex rel. Allred v. Bd. of Regents of the Univ. of N.M., 1997-NMCA-070, ¶¶ 17,...
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