Donovan v. Thorson (Nov. 12, 2025)

Case details
Full caption
David J. Donovan v. Kathryn Thorson
Country
United States
Jurisdiction
New Mexico (NM)
Court
New Mexico Supreme Court
Decided
Nov. 12, 2025
Disposition
Affirmed
Majority
Zachary A. Ives (J.) (unanimous Court)
DAVID J. DONOVAN, Plaintiff-Appellant, v. KATHRYN..., Not Reported in Pac.... © 2025 Thomson Reuters. No claim to original U.S. Government Works.12025 WL 3163106Only the Westlaw citation is currently available.UNPUBLISHED OPINION. CHECKCOURT RULES BEFORE CITING.Corrections to this opinion/decision not affecting theoutcome, at the Court's discretion, can occur up to thetime of publication with NM Compilation Commission.The Court will ensure that the electronic version of thisopinion/decision is updated accordingly in Odyssey.Court of Appeals of New Mexico.DAVID J. DONOVAN, Plaintiff-Appellant,v.KATHRYN THORSON, Defendant-Appellee,andFIDELITY INVESTMENTS, Defendant.No. A-1-CA-42695|Filed 11/12/2025APPEAL FROM THE DISTRICT COURT OF TAOSCOUNTY Emilio Chavez, District Court JudgeAttorneys and Law FirmsDavid J. Donovan Arroyo Seco, NM Pro Se AppellantHerdman MacGillivray Fullerton Cameron PumarejoHoneycutt PC Frank T. Herdman Santa Fe, NM for AppelleeMEMORANDUM OPINIONZACHARY A. IVES, Judge*1 {1} Plaintiff, a self-represented litigant, appeals from thedistrict court's entry of final judgment, after a jury trial, infavor of Defendant on all claims and counterclaims, orderdenying Plaintiff's motion to alter or amend the judgment, andorder denying Plaintiff's motion for a new trial. This Courtissued a calendar notice proposing to affirm. Plaintiff fileda memorandum in opposition, raising two issues that werenot previously asserted in Plaintiff's docketing statement.We construe this as a motion to amend. Having consideredPlaintiff's filing, we deny the motion to amend the docketingstatement as nonviable, and affirm. See State v. Moore, 1989-NMCA-073, 42, 109 N.M. 119, 782 P.2d 91 (stating thatthis Court will deny motions to amend that raise issues thatare not viable). Additionally, we deny Defendant's motion tostrike Plaintiff's memorandum in opposition and request forsanctions.{2} As an initial matter, we briefly discuss the subject ofDefendant's motion to strike—Plaintiff's citations to legalauthorities that either refer to the incorrect appellate reporterand therefore do not cite to the case discussed, or that do notcontain the direct quotation relied on by Plaintiff. Our ownreview of Plaintiff's authorities establishes that Defendant iscorrect, and Plaintiff's problematic citations complicate ourreview now on appeal. See In re Montoya, 2011-NMSC-042, 23, 150 N.M. 731, 266 P.3d 11 (“[A] failure of candorto the court can prejudice the administration of justice inviolation of Rule 16-804[ ] NMRA.”). Additionally, becausePlaintiff's case citations are incorrect or inaccurate, Plaintiffhas failed to cite supporting authority. This alone is groundsfor affirmance on appeal. See State v. Vigil-Giron, 2014-NMCA-069, 60, 327 P.3d 1129 (“[A]ppellate courts willnot consider an issue if no authority is cited in support ofthe issue and that, given no cited authority, we assume nosuch authority exists.”); see also ITT Educ. Servs., Inc. v.N.M. Tax'n & Revenue Dep't, 1998-NMCA-078, 10, 125N.M. 244, 959 P.2d 969 (explaining that in the absenceof citations to supporting authority, we need not consideran appellant's issue further). While Defendant requests thatwe strike Plaintiff's memorandum in opposition and ordersanctions, we decline to do so, and we instead proceed toreview Plaintiff's memorandum in opposition on the merits.However, we do caution Plaintiff to use correct legal citationsin the future.*2 {3} Plaintiff continues to maintain, based on the sametheories presented in his docketing statement, the sameassertions of error that this Court has previously discussed.First, Plaintiff reasserts that the district court erred inadmitting Defendant's recordings of Plaintiff into evidence.[MIO PDF 2-4] However, as we explained to Plaintiff in ournotice of proposed disposition, Plaintiff did not object to theadmission of the evidence at trial, and therefore this issue isnot preserved for our review. [CN 2]{4} Plaintiff similarly reasserts that he was entitled to recoveryfor work done on the property under the theory of quantummeruit and that the district court erred by failing to submitthis claim to the jury. [MIO PDF 4-8] Plaintiff continues torely on Kaiser v. Thomson, 1951-NMSC-037, 55 N.M. 270,232 P.2d 142. [MIO PDF 6] However, as we explained in our
DAVID J. DONOVAN, Plaintiff-Appellant, v. KATHRYN..., Not Reported in Pac.... © 2025 Thomson Reuters. No claim to original U.S. Government Works.2notice of proposed disposition, the claim was not submittedto the jury because the district court granted Defendant'smotion for summary judgment on this claim. [CN 2-3]Additionally, Plaintiff's reliance on Kaiser is misplaced. InKaiser, our Supreme Court held that a plaintiff could notrecover reimbursement for work done on a property underthe theory of quantum meruit unless the plaintiff held theappropriate license for his work—that is, unless the plaintiffwas a licensed contractor. See id. ¶¶ 2-8. [CN 5] Finally,Plaintiff's docketing statement agreed that Plaintiff could onlyrecover for work done if Plaintiff had the appropriate license.[CN 4]{5} Plaintiff also reasserts that Defendant's claim forintentional infliction of emotional distress was not supportedby substantial evidence because Defendant did not providemedical records. [MIO PDF 8-9] But Plaintiff continuesto provide no authority that actual, medical damages arerequired to establish a claim of intentional infliction ofemotional distress, and our research shows that a claimantmust only show that they experienced distress. [CN 6-7]See UJI 13-1628 NMRA. And although Plaintiff disagreesthat Defendant's evidence was sufficient to establish conduct“so extreme in degree, as to go beyond all possible boundsof decency,” see Padwa v. Hadley, 1999-NMCA-067, 10,127 N.M 416, 981 P.2d 1234 (internal quotation marks andcitation omitted), this was a question for the jury, not thisCourt, to answer, and we decline to undo the answer givenby the jury when it returned its verdict. See Perea v. FiestaPark Healthcare, LLC, 2023-NMCA-014, 25, 525 P.3d 378(explaining that we resolve all facts in favor of the partyprevailing below and indulge in all reasonable inferences infavor of the jury's verdict and disregard all contrary evidence).{6} Further, Plaintiff continues to argue that Defendant'sclosing remarks prejudiced the jury about Plaintiff's financialstatus, causing the jury to award a greater judgment thanappropriate. [MIO PDF 10-11] But the record contradictsPlaintiffs assertion now on appeal. [CN 7-8] And as weexplained in our notice of proposed disposition, this “claimrelies on an argument our case law has consistently rejected:that the size of the noneconomic damages alone justifies aninference of passion or prejudice.” Saunders v. Union Pac.R.R. Co., 2025-NMCA-019, 43, 572 P.3d 253.{7} Plaintiff finally reasserts that the district court erredby denying his motion for a new trial. [MIO PDF 11-16]Although Plaintiff continues to focus on the injury andprejudice suffered by him as a result of the jury verdictand entry of final judgment [MIO PDF 11-12, 15-16], weexplained in our notice of proposed disposition, the recordestablished that there was a high likelihood of prejudiceto Defendant if the district court granted Plaintiff's motion.[CN 9-10] See Marquez v. Frank Larrabee & Larrabee,Inc., 2016-NMCA-087, 15, 382 P.3d 968 (explaining thata movant must establish, among other requirements, thatthere is little likelihood of prejudice to the nonmovingparty should a judgment be vacated). While Plaintiff nowcontends that Defendant would experience “[m]inimal or [n]o[p]rejudice” if his motion was granted [MIO PDF 13-14],Plaintiff provides no correct citation in support. Rather, aswe explained in our notice of proposed disposition, therecord established that that the likelihood of prejudice toDefendant was high, and we will not speculate on Plaintiff'sbehalf. [CN 9-10] See Elane Photography, LLC v. Willock,2013-NMSC-040, 70, 309 P.3d 53 (“We will not reviewunclear arguments, or guess at what a party's arguments mightbe.” (text only) (citation omitted)).*3 {8} As such, Plaintiff does not direct this Court to anynew fact, law, or argument that persuades us that our noticeof proposed disposition was incorrect. Rather, Plaintiff'sarguments repeat the same assertions of error withoutdirecting this Court to error in our proposed resolution ofthese issues. See Hennessy v. Duryea, 1998-NMCA-036, 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedlyheld that, in summary calendar cases, the burden is on theparty opposing the proposed disposition to clearly pointout errors in fact or law.”); State v. Mondragon, 1988-NMCA-027, 10, 107 N.M. 421, 759 P.2d 1003 (statingthat “[a] party responding to a summary calendar notice mustcome forward and specifically point out errors of law andfact,” and the repetition of earlier arguments does not fulfillthis requirement), superseded by statute on other grounds asstated in State v. Harris, 2013-NMCA-031, 3, 297 P.3d 374.We therefore refer Plaintiff to our previous analysis in ourproposed summary disposition.{9} Additionally, Plaintiff seeks to amend his docketingstatement to raise two new issues. First, Plaintiff assertsthat the district court erred by failing to sever Defendant'sintentional infliction of emotional distress claim from therest of the claims presented to the jury because Defendant'srecordings of Plaintiff entered into evidence “[a]llow[ed]the recordings to influence the jury [and] effectivelydenied [P]laintiff a fair trial and constitutes a fundamentalmiscarriage of justice.” [MIO PDF 4] However, the recordestablishes that Defendant attempted to bifurcate the property
DAVID J. DONOVAN, Plaintiff-Appellant, v. KATHRYN..., Not Reported in Pac.... © 2025 Thomson Reuters. No claim to original U.S. Government Works.3claims from the remainder of the claims [2 RP 363-65],Plaintiff opposed Defendant's request [2 RP 366-68], andthe district court denied Defendant's motion. [2 RP 375]Assuming that the district court erred in denying Defendant'smotion to bifurcate, “[i]t is well established that a party maynot invite error and then proceed to complain about it onappeal.” State v. Jim, 2014-NMCA-089, 22, 332 P.3d 870. Inother words, a party may not request a ruling from the districtcourt and then, on appeal, claim that the ruling that the partyrequested was erroneous and requires reversal.{10} Second, Plaintiff argues that he is also entitled tocompensation under the theory of quantum meruit or unjustenrichment for his management of an investment account.[MIO PDF 4, 6-7] Our review of the record shows thatPlaintiff did not plead a claim for a management fee relatedto the investment account, only for his work on the property.[1 RP 6-7] Instead, Plaintiff pled a claim for joint-ownershipof the account under a theory of express agreement [1 RP15], and the jury found in favor of Defendant. [4 RP 892]Because Plaintiff did not plead a claim for a management fee,this issue was not presented to the jury, and Plaintiff cannotnow present this issue for the first time on appeal. See State v.Druktenis, 2004-NMCA-032, 122, 135 N.M. 223, 86 P.3d1050 (“[G]enerally, [we will not] address issues not preservedbelow and raised for the first time on appeal.”).{11} For the reasons stated in our notice of proposeddisposition and herein, we affirm.{12} IT IS SO ORDERED.WE CONCUR:SHAMMARA H. HENDERSON, JudgeGERALD E. BACA, JudgeAll CitationsNot Reported in Pac. Rptr., 2025 WL 3163106End of Document© 2025 Thomson Reuters. No claim to original U.S. Government Works.
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