Boucher v. Foxworth-Galbraith Lumber Co., FOXWORTH-GALBRAITH

Citation1986 NMCA 138,105 N.M. 442,733 P.2d 1325
Decision Date30 December 1986
Docket NumberFOXWORTH-GALBRAITH,No. 8116,8116
PartiesDennis R. BOUCHER and Cindy Boucher, Plaintiffs-Appellants, v.LUMBER COMPANY, a foreign corporation, Defendants-Appellees.
CourtCourt of Appeals of New Mexico
OPINION

HENDLEY, Chief Judge.

This tort appeal has been pending on our docket and ready for submission since January of 1985. In August of 1986, upon the recommendation of, and with the assistance of the State Bar of New Mexico, which assistance is greatly appreciated, this Court adopted an experimental plan pursuant to which cases would be assigned to advisory committees of experienced attorneys. Pursuant to our order adopting the plan, once the advisory committee rendered an opinion, that opinion would be served on the parties with an order to show cause why the opinion should not be adopted as the opinion of the Court. The parties would then have the opportunity to submit response memoranda to the Court.

This case was submitted to an advisory committee and the parties were so notified. That committee rendered a unanimous opinion. The parties were notified of the opinion and of their right to submit response memoranda. No response memoranda have been filed and the time for such filing has expired. This Court has considered the transcript and briefs in this case, together with the opinion of the advisory committee. It is the decision of this Court that the result of the opinion of the advisory committee should be adopted. Our reasoning follows.

Plaintiffs Dennis R. Boucher and Cindy Boucher sued Defendant Foxworth-Galbraith Lumber Company, a foreign corporation. Suit was based upon two legal theories. Count I was a theory of invasion of privacy. Count II was a theory of abuse of process. The trial court dismissed both counts. Bouchers appeal. On appeal, they contest only the dismissal of their invasion of privacy theory.

We affirm.

Foxworth sought dismissal of the complaint based upon absolute privilege. In reaching its decision, the trial court reviewed, in addition to the complaint, the district court record in Cause No. CV-82-166 in the District Court of Luna County. Thus, this is technically an appeal from a grant of summary judgment. Tompkins v. Carlsbad Irrigation District, 96 N.M. 368, 630 P.2d 767 (Ct.App.1981).

Foxworth complains on appeal that Bouchers failed to order the record in Cause No. CV-82-166 for inclusion in the record on appeal. We agree, and find such failure fatal to a review of the trial court's decision. Richardson Ford Sales v. Cummins, 74 N.M. 271, 393 P.2d 11 (1964), is so much like this case that we adopt much of the language therein, omitting the citations and paraphrasing only to refer to current rules and the facts of this case. Cummins was also a motion to dismiss, treated as a summary judgment because the trial court...

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13 cases
  • 1997 -NMCA- 25, Spectron Development Laboratory, a Div. of Titan Corp. v. American Hollow Boring Co., 16,769
    • United States
    • Court of Appeals of New Mexico
    • January 2, 1997
    ...purported disclaimer is not in the record on appeal and therefore will not be considered. See Boucher v. Foxworth-Galbraith Lumber Co., 105 N.M. 442, 443-44, 733 P.2d 1325, 1326-27 (Ct.App.1986). Bay City is not foreclosed from relying on the disclaimer in future proceedings in district ¶44......
  • Baum v. Orosco
    • United States
    • Court of Appeals of New Mexico
    • July 16, 1987
    ...105 N.M. 320, 731 P.2d 1364 (Ct.App.1986); Stoll v. Dow, 105 N.M. 316, 731 P.2d 1360 (Ct.App.1986); Boucher v. Foxworth-Galbraith Lumber Co., 105 N.M. 442, 733 P.2d 1325 (Ct.App.1986). The committee rendered a unanimous decision and the parties were so notified. Defendant Joe L. Orosco, Sr.......
  • State, Dept. of Transp., Motor Vehicle Div. v. Romero
    • United States
    • Court of Appeals of New Mexico
    • December 17, 1987
    ... ... See Boucher v. Foxworth- ... [106 NM 658] Galbraith Lumber Co., 105 ... ...
  • Amerada Hess Corp. v. Adee
    • United States
    • Court of Appeals of New Mexico
    • September 1, 1987
    ...105 N.M. 320, 731 P.2d 1364 (Ct.App.1986); Stoll v. Dow, 105 N.M. 316, 731 P.2d 1360 (Ct.App.1986); Boucher v. Foxworth-Galbraith Lumber Co., 105 N.M. 442, 733 P.2d 1325 (Ct.App.1986). The committee rendered a unanimous opinion proposing to reverse the trial court's order granting summary j......
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