WELLS FARGO BANK V. TOLAND
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WELLS FARGO BANK, N.A.,
Plaintiff,
v.
THE UNKNOWN HEIRS, DEVISEES,
OR LEGATEES OF ROBERT CARMIGNANI
a/k/a ROBERT L. CARMIGNANI, deceased,
UNITED STATES OF AMERICA BY AND
THROUGH THE INTERNAL REVENUE
SERVICE, THE UNKNOWN SURVIVING
SPOUSE OF ROBERT CARMIGNANI a/k/a
ROBERT LO. CARMIGNANI, if any,
LAWRENCE THOMAS CARMIGNANI, and
THE STATE OF NEW MEXICO DEPARTMENT
OF TAXATION AND REVENUE,
Defendants,
IN RE DON C. TOLAND,
Appellant.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY, Nan
G. Nash, District Judge
Don C. Toland, Albuquerque,
NM, Pro Se Appellant
Snell & Wilmer, L.L.P., Sandra A.
Brown, Albuquerque, NM, for Plaintiff
M. MONICA ZAMORA, Judge. WE CONCUR: J.
MILES HANISEE, Judge, EMIL J. KIEHNE, Judge
{1} Don C. Toland
(“Toland”) appeals from the denial of his motion to intervene in the
proceedings below. [RP 158-62, 205-06] Unpersuaded by Toland’s docketing
statement, we entered a notice of proposed summary disposition, proposing to
affirm. Toland has filed a memorandum in opposition (MIO) to our notice. We
remain unpersuaded and therefore affirm.
{2} In his docketing
statement, Toland raised four issues, all of which related to the central contention
that the district court erred in denying his motion to intervene. [ADS 6] Our
notice, which proposed summary affirmance, set forth the relevant facts and the
law that we believed controlled. This Court proposed that the district court
did not err in denying Toland’s motion to intervene because he did not seek to
intervene in a timely manner. In response, Toland points out that he would have
had to intervene in this case before the separate action between himself and
Plaintiff in this case was resolved. [MIO 2] However, the fact that the related
case had yet to be resolved does not alter our analysis with respect to
timeliness. Toland was not precluded from attempting to intervene in this case
because the related case was pending. Additionally, we point out, as we did in
our notice of proposed summary disposition, that once the related case had been
resolved, Toland waited more than a year before attempting to intervene in this
case. Accordingly, we are unpersuaded by Toland’s arguments with respect to
timeliness.
See Hennessy v. Duryea,
1998-NMCA-036, ¶ 24,
124 N.M.
754,
955 P.2d 683 (“Our courts have repeatedly held that, in summary calendar
cases, the burden is on the party opposing the proposed disposition to clearly
point out errors in fact or law.”).
{3} Toland also takes
issue with language and case law that he claims is in our notice of proposed
summary disposition. [MIO 3] However, neither the language he quotes nor the
case he refers to was in this Court’s notice. Therefore, we do not address his
contentions.
{4} The remainder of
Toland’s MIO relates to issues that he wished to raise as a potential
intervenor. [MIO 3-5] However, because the district court denied his motion to
intervene and this Court finds no error in that ruling, we do not address these
issues.
{5} In sum, Toland’s
MIO does not supply any new legal or factual argument that persuades us that
our analysis or proposed disposition was incorrect.
See State v. Mondragon,
1988-NMCA-027, ¶ 10,
107 N.M. 421,
759 P.2d 1003 (stating that “[a] party
responding to a summary calendar notice must come forward and specifically
point out errors of law and fact[,]” and the repetition of earlier arguments
does not fulfill this requirement),
superseded by statute on other grounds
as stated in State v. Harris,
2013-NMCA-031, ¶ 3,
297 P.3d 374.
Accordingly, for the reasons set forth in our notice of proposed disposition
and in this opinion, we affirm.