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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

No. A-1-CA-41220

D. MCCALL and CCC&S FAMILY, LLC,

Plaintiffs-Appellants,

v.

THE MONEY SOURCE, INC.,

Defendant-Appellee,

and

AUCTION.COM and FIDELITY NATIONAL

INSURANCE COMPANY,

Defendants.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Lisa Chavez Ortega, District Court Judge

Western Agriculture, Resource and

Business Advocates, LLP

Jared R. Vander Dussen

A. Blair Dunn

Albuquerque, NM

for Appellants

Vance, Chavez & Associates, LLC

James A. Chavez

Albuquerque, NM

for Appellee
MEMORANDUM OPINION

YOHALEM, Judge.

{1} Plaintiffs appeal the district court’s order denying their motion to reconsider the 

ruling on costs and attorney fees and the district court’s order denying their motion to 

reconsider summary judgment. We issued a notice proposing to summarily affirm. 

Plaintiffs have filed a memorandum in opposition to our notice. After due consideration 

of the materials before us, we affirm. 

{2} Our notice proposing affirmance informed Plaintiffs that their docketing statement 

inadequately described the claimed error on appeal and failed to provide a summary of 

the evidence and arguments presented in favor of summary judgment and opposing 

summary judgment. [CN 1-3] See State v. Talley, 1985-NMCA-058, ¶ 23, 103 N.M. 33, 

702 P.2d 353 (explaining that a docketing statement is intended to serve as a fair 

substitute for the complete record on the summary calendar). The notice further 

explained that if Plaintiffs wished to achieve a different result in this Court, in any 

response they may file, Plaintiffs must explain what Defendant presented to establish 

that it owned the property and possessed the legal authority to sell the property at the 

time it entered into the purchase and sale agreement with Plaintiffs, and Plaintiffs must 

explain how they presented a material factual dispute in response to Defendant’s 

showing. [CN 3-4] 

{3} In response to our notice, Plaintiffs merely recount their claims in numerous 

conclusory statements, mostly without citation to the record [MIO 4-6], and those 

citations provided include large portions of the record that do not relate to Plaintiffs’ 

claims [MIO 4]. Plaintiffs also fail to describe the evidentiary support that was presented 

in district court to support their claims and provide no targeted citations to the record. 

See Muse v. Muse, 2009-NMCA-003, ¶ 72, 145 N.M. 451, 200 P.3d 104 (“We will not 

search the record for facts, arguments, and rulings in order to support generalized 

arguments.”); In re Estate of Heeter, 1992-NMCA-032, ¶ 15, 113 N.M. 691, 831 P.2d 

990 (“This [C]ourt will not search the record to find evidence to support an appellant’s 

claims.”). Also, contrary to the instructions in our notice, Plaintiffs’ response does not 

provide an explanation of the grounds on which Defendant sought summary judgment, 

the evidence presented to support Defendant’s claims, the grounds on which the district 

court ruled, or how Plaintiffs’ evidence and argument in district court responded to 

Defendant’s showing in order to defeat summary judgment. [CN 2-4] As we warned in 

our notice, these omissions, alone, constitute grounds for affirmance, and do not 

affirmatively demonstrate error. See State v. Chamberlain, 1989-NMCA-082, ¶ 11, 109 

N.M. 173, 783 P.2d 483; Farmers, Inc. v. Dal Mach. & Fabricating, Inc., 1990-NMSC100, ¶ 8, 111 N.M. 6, 800 P.2d 1063.

{4} Although we are not required to address the merits of Plaintiffs’ claims under 

these circumstances, our independent review of the record also supports affirmance. 

The record indicates that Defendant made a prima facie showing that it was selling the 

subject property and that it owned and possessed the legal authority to sell the subject 
property at all material times. [1 RP 190-93, 207-11, 213-14, 216-17, 219] The record 

also shows that the parties entered into a purchase and sale agreement for the sale of 

the property at issue, under which Defendant had the absolute and unilateral right to 

terminate the contract with Plaintiffs at any time and for any reason, even after closing, 

and that Plaintiffs’ sole remedy was to receive the return of Plaintiffs’ earnest money 

deposit. [RP 222] Pursuant to the parties’ agreement, Defendant exercised its right to 

terminate the agreement and returned the earnest money to Plaintiffs. [2 RP 347] Thus, 

we see no showing of a breach of contract or actual damages that Plaintiffs suffered 

from the termination of the agreement. 

{5} We agree with the district court that these facts also undercut Plaintiffs’ claims for 

breach of the implied covenant of good faith and fair dealing and fraud, given the 

following: “the implied covenant of good faith and fair dealing cannot be used to 

overcome or negate an express term contained within a contract,” see Sanders v. 

FedEx Ground Package Sys., Inc., 2008-NMSC-040, ¶ 8, 144 N.M. 449, 188 P.3d 1200, 

and Plaintiffs failed to show a misrepresentation of fact, evidence of Defendant’s 

knowledge and intent to deceive, or evidence of detrimental reliance, see generally Cain 

v. Champion Window Co. of Albuquerque, LLC, 2007-NMCA-085, ¶ 22, 142 N.M. 209, 

164 P.3d 90 (stating the elements of a fraud claim). [1 RP 199-202; 2 RP 347] See also 

Cont’l Potash, Inc. v. Freeport-McMoran, Inc., 1993-NMSC-039, ¶ 67, 115 N.M. 690, 

858 P.2d 66 (holding that because “[i]t would be incongruous to hold that the 

defendants acted in bad faith in acting in accordance with an express contractual 

provision[,] . . . the trial court erred as a matter of law in finding and enforcing implied 

covenants against the defendants that were inconsistent with the provisions of the 

written agreements”). 

{6} In light of the foregoing, we are not persuaded that Plaintiffs met their burden “to 

demonstrate the existence of specific evidentiary facts” that required a trial on merits by 

filing a single affidavit that concluded without a factual basis that Defendant’s property 

at issue was not actually available for sale. [2 RP 322] See generally Bank of N.Y. 

Mellon v. Lopes, 2014-NMCA-097, ¶ 6, 336 P.3d 443 (“The movant need only make a 

prima facie showing that [it] is entitled to summary judgment. Upon the movant making 

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

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

merits.” (internal quotation marks and citation omitted)); Lotspeich v. Golden Oil Co.,

1998-NMCA-101, ¶¶ 12, 19, 125 N.M. 365, 961 P.2d 790 (indicating that affidavits 

submitted in opposition to motion for summary judgment should be “neither conclusory 

nor without a factual base”).

{7} Lastly, to the extent Plaintiffs contend in their memorandum in opposition that the 

contract is not valid and that provisions within the contract are not enforceable [MIO 4], 

Plaintiffs do not explain how these arguments were raised below and no document that 

falls within the broad citation to the record that Plaintiffs provide shows that they 

challenged the enforceability of the contract or any specific provision therein. [1 RP 1-4; 

2 RP 347-84] See Crutchfield v. N.M. Dep’t Tax’n & Revenue, 2005-NMCA-022, ¶ 14, 

137 N.M. 26, 106 P.3d 1273 (“[O]n appeal, the party must specifically point out where, 
in the record, the party invoked the court’s ruling on the issue. Absent that citation to the 

record or any obvious preservation, we will not consider the issue.”). Accordingly, we do 

not address this matter further.

{8} For the reasons stated above, we hold that Plaintiffs have not established that 

the district court erred by granting summary judgment in favor of Defendant. We 

therefore affirm.

{9} IT IS SO ORDERED.

JANE B. YOHALEM, Judge

WE CONCUR:

KRISTINA BOGARDUS, Judge

JACQUELINE R. MEDINA, Judge