This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 RUBY RIVERA, 7 Plaintiff-Appellant, 8

v. NO. 30,519 9 ZIA PARK, LLC, a Delaware Limited Liability Company, 10 Defendant-Appellee. 11 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 12 Don Maddox, District Judge 13 Templeman & Crutchfield, PA 14 Barry C. Crutchfield 15 Lovington, NM 16 for Appellant 17 Hinkle, Hensley, Shanor & Martin, L.L.P. 18 Jennifer M. Heim 19 Roswell, NM 20 Richard E. Olson 21 Roswell, NM 22 for Appellee 23

MEMORANDUM OPINION 242 CASTILLO, Judge. 1 Plaintiff appeals an order granting summary judgment to Defendant. We 2 proposed to affirm in a notice of proposed summary disposition, and Plaintiff has filed 3 a timely memorandum in opposition. Remaining unpersuaded by Plaintiff’s 4 memorandum, we affirm. 5 “Summary judgment is proper if there are no genuine issues of material fact and 6 the movant is entitled to judgment as a matter of law.” Roth v. Thompson , 113 N.M. 7 331, 334, 825 P.2d 1241, 1244 (1992). The court must resolve all reasonable 8 inferences in favor of the nonmovant and must view the pleadings, affidavits, 9 depositions, answers to interrogatories and ad missions in a light most favorable to a 10 trial on the merits. See Carrillo v. Rostro , 114 N.M. 607, 615, 845 P.2d 130, 138 11 (1992). Although all reasonable inferences are resolved in favor of the nonmovant, 12 once the movant makes a prima facie showi ng that it is entitled to summary judgment, 13 “the burden shifts to the party opposing the motion to demonstrate the existence of 14 specific evidentiary facts which woul d require trial on the merits.” Roth , 113 N.M. 15 at 334-35, 825 P.2d at 1244-45. The party opposing summary judgment “cannot rely 16 on the allegations contained in its comp laint or upon the argument or contention of 17 counsel to defeat it. Rather, the opponentmust come forward and establish with 18 admissible evidence that a genuineissue of fact exists.” Ciup v. Chevron U.S.A., Inc. , 193 1996-NMSC-062, ¶ 7, 122 N.M. 537, 928 P.2d 263 (citation omitted). 1 Plaintiff contends that the district c ourt erred in granting summary judgment to 2 Defendant because the sales contract between Defendant and Zia Partners, LLC 3 (Partners) contains an indemnification clause requiring Partners to indemnify 4 Defendant if Defendant was f ound liable for acts of Partners that occurred prior to the 5 asset sale. [MIO 1-2] Sh e claims that Partners’ agreement to indemnify Defendant 6 for claims that might be asserted by a third party should be construed as meaning that 7 Defendant was the operator of a continuing business and f unctioned as Partners’ agent 8 for claims such as Plaintiff’s. [MIO 2; RP 143-146 §§ 10.2-10.9, 192-195] We are 9 unpersuaded. 10 As observed in our notice of proposed summary disposition, the sales contract 11 between Defendant and Partners establishes that Defendant rejected any assumption 12 of liability for matters occurring prior to th e closing date of the sale. [RP 77, 95 §§ 13 1.3(I) and (k)] Therefore, Defendant is not liable for the debts and liability of 14
Partners. See Garcia v. Coe Mfg. Co., 1997-NMSC-013, ¶ 11, 123 N.M. 34, 933 P.2d 15 243 (recognizing the general rulethat, absent a contractual provision to the contrary, 16 a corporation which purchases the assets of another corporation will not be liable for 17 the obligations and debts of the seller corporation). Given this language clearly 18 rejecting assumption of liability, we fail to see how an indemnification agreement 194 between Defendant and Partners is sufficient to warrant a finding that Defendant 1 should be liable on third party claims. The agreement only specifies that, in the event 2 Defendant incurs certain costs and expenses , it can look to Partners for defense and 3 reimbursement; it does not provide that Defendant is assuming any liability to 4 compensate a third party such as Plaintiff who is asserting a claim. 5
In Garcia , our Supreme Court recognized four traditional exceptions to the 6 general rule that a corporation purchasing th e assets of another is not liable for the 7 debts of the selling corporation: “‘(1) wher e there is an agreem ent to assume those 8 obligations; (2) where the transfer results ina consolidation or merger; (3) where there 9 is a continuation of the transferor corporation; or (4) where the transfer is for the 10 purpose of fraudulently avoiding liability.’” Id. ¶ 12 (quoting Southwest Distrib. Co. 11 v. Olympia Brewing Co. , 90 N.M. 502, 505, 565 P.2d 1019, 1022 (1977)). Plaintiff 12 has failed to make a showing that any of the traditional exceptions applies. 13 As previously discussed, there is no agreement by Defendant to assume these 14 obligations. To the contrary, the sales contract clearly states that Defendant is not 15 assuming the pre-existing debts and obligati ons of Partners, [RP 95 §§ 1.3(I) and (k)] 16 and the provisions regarding Partners’ i ndemnification of De fendant in no way 17 suggest that Defendant agreed to assume Partners’ obligations. Furthermore, Plaintiff 18 has failed to cite to any authority supporti ng her contention that an indemnification 195 agreement entitles a third party such as hers elf to sue the indemnified party for claims 1 it has against the indemnifying party. Cf. In re Adoption of Doe , 100 N.M. 764, 765, 2 676 P.2d 1329, 1330 (1984) (stating that where a party cites no authority to support 3 an argument, we may assumeno such authority exists). 4 Despite the lack of any ag reement, Plaintiff claims that the reasoning expressed 5 by our Supreme Court in Garcia under “the continuation of enterprise exception” 6 warrants imposing liability on Defendant for Plaintiff’s injuries. [MIO 3-4] She 7 claims that public policy should allow suit against Defendant because otherwise 8 Plaintiff is barred from recovery given that the limitations period had expired so she 9 could not bring suit against Partners. [MIO 3-4] We disagree. 10 As discussed in our previous notice, New Mexico has not yet recognized the 11 continuation of enterprise exception. See Garcia , 1997-NMSC-013, ¶¶ 15-23 (noting 12 that the continuation of enterprise and pr oduct-line exceptions have been rejected by 13 many courts that have considered them but then holding that the product-line 14 exception would be recognized as consistent with the Court’s previous analysis of 15 cases involving “liability for injuries caused by product design defects” ). Plaintiff has 16 failed to rebut the observation in our noti ce that we know of no cases in New Mexico 17 where the continuation of enterprise exception has been adopted and applied. 18 Even if the continuation of enterpriseexception might apply in some cases, we 196 continue to be of the opinion that this exception would not allow Plaintiff to pursue 1 her claims against Defendant in this case. The exception, if it applies at all, only 2 applies in cases of product liability. See id. ¶ 14 (recognizing that the factors at issue 3 require consideration of whether the successor “utilizes the same production

. . . 4 personnel, [and] the same methods of production ” (emphasis added)). Plaintiff has 5 failed to make any showing that the public policy considerations relevant in a case 6 involving product liability are similar to the considerations presented in Plaintiff’s 7 negligence case against Partners. [MIO 4; RP 192-195] Cf. id. ¶ 15 (recognizing that 8 the decision of whether public policy cons iderations should prevail to allow the 9 plaintiff to proceed against a successor corporation requires assessment of “the 10 competing policies which underlie rules of c ontract and tort liability consistent with 11 [our previous] products liability analysis”). 12 Moreover, the public policy c onsiderations identified in Garcia do not warrant 13 protection of Plaintiff in this case because her recovery from Partners is not precluded 14 because Partners “has dissolved, is defunc t, or is otherwise unavailable to respond in 15 damages” but only because she failed to name Partners as a party within the 16 limitations period. Id . As discussed in our previous notice, we are unaware of any 17 case law that would allow Plaintiff to pro ceed against Defendant merely because her 18 claims against the proper party are barred by the expiration of the limitations period. 197 See ITT Educ. Servs., Inc., v. Taxation & Revenue Dep’t , 1998-NMCA-078, ¶ 10, 125 1 N.M. 244, 959 P.2d 969 (holding that, on review, we will not consider a proposition 2 unsupported by citation to authority). 3 Finally, Plaintiff again claims that she was unaware of the nature of the sale of 4 assets between Defendant and Partners. [MIO 2] However, she has failed to inform 5 us of any case law holding that her ignoran ce of the assets purchase details should 6 result in a finding that Defendant must answer for Plaintiff’s injury. Therefore, we 7 remain of the opinion that Plaintiff’s ignorance does not warrant a reversal of the 8 order granting summary judgment to Defendant. 9 CONCLUSION 10 For the foregoing reasons as well as those set forth in our notice of proposed 11 disposition, we affirm the district court’s order granting summary judgment to 12 Defendant. 13 IT IS SO ORDERED. 14

___________________________________ 15 CELIA FOY CASTILLO, Judge 16 WE CONCUR: 17

__________________________________ 18 RODERICK T. KENNEDY, Judge 198 __________________________________ 1 LINDA M. VANZI, Judge 2