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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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 PRISCILLA C. ZUNIGA, n/k/a PEREZ, 7 Petitioner-Appellant, 8

v. NO. 29,161 9 MICHAEL JERRY ZUNIGA, 10 Respondent-Appellee, 11 and 12 MIGUEL R. ZUNIGA and 13 RAMONA G. ZUNIGA , 14 Intervenors-Appellees. 15 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 16 Michael T. Murphy, District Judge 17 Michael L. Danoff 18 Albuquerque, NM 19 for Petitioner-Appellant 20 Grace B. Duran 21 Albuquerque, NM 22 for Respondent-Appellee 232 Lloyd O. Bates Jr. Law Firm 1 Lloyd O. Bates, Jr. 2 Las Cruces, NM 3 for Intervenors-Appellees 4 MEMORANDUM OPINION 5 KENNEDY, Judge. 6 This is a domestic dispute between wife (Petitioner) and husband (Respondent) 7 and husband’s parents (Intervenors). Petiti oner appeals from (1) the order granting 8 Intervenors and Respondent summary judgment [RP 232] and (2) the order denying 9 Petitioner’s motion for reconsideration, and her Rule 1-060(B) motion [RP 236]. This 10 Court’s calendar notice proposed to revers e the district court’s order granting 11 summary judgment to Intervenors/Respondent (Issue 1) and remand this case for trial 12 on the merits. [Ct. App. File, CN1] Becau se of the dispositive nature of the proposed 13 disposition on Issue 1, this Court did not ad dress Issues 2 and 3. [Id.] Intervenors 14 have filed a memorandum in opposition to the proposed disposition. [Ct. App. File, 15 MIO] Unpersuaded, we reverse and remand for trial on the merits. 16 DISCUSSION 17 Petitioner contends that the district court erred as follows: (1) the district court 18 abused its discretion by granting the Intervenors’/Respondent’s motion for summary 19 judgment after granting Petitioner’s counsel se ven days to file an amended response 20 to Intervenors’ motion; (2) the districtcourt abused its discretion in denying 213 Petitioner’s Rule 1-060(B) motion asserting that newly discovered evidence required 1 the district court to set aside the order granting Intervenors’/Respondent’s motion for 2 summary judgment; and (3) Petitioner’s former counsel’s actions and/or omissions in 3 failing to properly respond to the Intervenors’ motion for summary judgment 4 constituted excusable neglect requiring the order granting summary judgment to be 5 set aside. [DS 6-7] Under the de novo standard of review applicable to our review 6 of summary judgment orders, we reverse th e district court’s order granting summary 7 judgment to Intervenors/Respondent (Issue 1) and remand this ca se for trial on the 8 merits. Since the proposed disposition is dispositive of the appeal, we do not reach 9 the merits of Issues 2 and 3. 10 “Summary judgment is appropriate wh ere there are no genuine issues of 11 material fact and the movant is entitled to judgment as a matter of law . . . . We review 12 these legal questions de novo.” Self v. United Parcel Serv., Inc. , 1998-NMSC-046, 13 ¶ 6, 126 N.M. 396, 970 P.2d 582 (c itation omitted). “The movant need only make a 14 prima facie showing that he is entitled to summary judgment.” Roth v. Thompson , 113 15 N.M. 331, 334-35, 825 P.2d 1241, 1244-45 (1992) (citation omitted). “Upon the 16 movant making a prima facie showing, the burden shifts to the party opposing the 17 motion to demonstrate the existence of sp ecific evidentiary facts which would require 18 trial on the merits.” Id. “On appeal, we examine the whole record for any evidence 194 that places a genuine issue of material fact in dispute.” Rummel v. Lexington Ins. Co. , 1 1997-NMSC-041, ¶ 15, 123 N.M. 752, 945 P.2d 970 (citing C & H Constr. & Paving, 2 Co. v. Citizens Bank , 93 N.M. 150, 158, 597 P.2d 1190 (1979). “In evaluating the 3 pleadings and evidence, we will balance our determination in support of the parties’ 4 right to a trial on the issues.” Id. (citing Jacobson v. State Farm Mut. Auto. Ins. Co. , 5 81 N.M. 600, 601, 471 P.2d 170, 171 (1970). “If we find a genuine controversy as to 6 any material fact, summary judgment will bereversed and the disputed facts will be 7 argued at trial.” Id. 8 In this case, the district court grante d summary judgment to the Intervenors, as 9 joined by Respondent, solely because Petitioner’s response to the motion was a legal 10 memorandum and did not contain sworn affidavits or other testimony that specifically 11 contradicted the “undisputed facts” set fo rth in the Intervenors’ motion for summary 12 judgment. [RP 119, 146, 233 ¶¶ 5-8, 249, ¶ 11] At the hearing on the motion, the 13 district court “recognized that he had knowle dge of several issues of material fact 14 regarding indebtedness in th e Intervenors’[m]otion for [s]ummary [j]udgment, but that 15 he would not recognize them because Petiti oner’s [r]esponse was not in the correct 16 form.” [DS 5] 17 We agree with the district court’s asse ssment that the Intervenors’ motion for 18 summary judgment, on its face, presents several issues of material fact. “Before entry 195 of an order granting summary judgment, the district court must assess whether, on the 1 merits, the moving party satisfied the burden under Rule 1-056(C).” Lujan v. City of 2 Albuquerque , 2003-NMCA-104, ¶ 18, 134 N.M. 207, 75 P.3d 423. We hold, 3 therefore, that summary judgment is inappropriate, notwithstanding Petitioner’s 4
response. 5 The material issues of fact that app ear on the face of Intervenors’ motion for 6 summary judgment include, for example, wh ether the funds and the property deeds 7 Intervenors transferred to Respondent and Pe titioner during their marriage, all or some 8 of them, were gifts or loans. In partic ular, the Intervenors’ exhibits appear to 9 contradict, or at least do not particularly support, their assertions in the motion for 10 summary judgment that all of the money and land transfers were not gifts. For 11 example, the quitclaim deed regarding the transfer of the New Mexico lot, attached 12 as exhibit 4 to Intervenors’ motion for summary judgment, specifically provides that 13 the transfer was made upon $0 consideration. [RP 131] In addition, the grant deed 14 on the California property from Intervenor s to Respondent and Petitioner, as joint 15 tenants, reads for “$0” consideration with “GIFT-GRANTOR RECEIVED NO 16 CONSIDERATION,” on its face, appears to gift transfer all of the California property 17 to Respondent and Petitioner as joint tenants rather than only a one-half interest, as 18 Intervenors claim in their motion for summary judgment. [RP 129, 119 ¶ 5] The 196 other exhibits attached to the Intervenor s’ motion for summary judgment, which list 1 the money transfers and the value of the Ne w Mexico lot transfer, on their face, do not 2 contain any indication that the transfers were loans rather than gifts. [RP 135, 140] 3 As such, these documents appear to contradi ct, or at least do not particularly support, 4 Intervenors’ assertions in the motion for summary judgment regarding the legal nature 5 of some, if not all, of the transfers. Perhaps Intervenors’ view of the evidence will 6 prevail, but internal conflicts do not support summary judgment. 7 Therefore, any agreement by Respondent and Petitioner to repay Intervenors 8 would have to be embodied in an oral c ontract. In this regard, we agree with 9 Petitioner’s legal analysis inher response to the motion for summary judgment. [RP 10 147-48] The terms and conditions of any alleged oral contr act and the partial or total 11 performance thereof, remain material issues of fact precluding summary judgment. 12 [Id.] In addition, the legal doctrine of the statute of frauds may or may not, therefore, 13 play a part in the analysis depending on the resolution of these facts, precluding 14 summary judgment at this time as a matter of law. Either way, it should be more fully 15 developed than summary judgment allows. 16 Finally, we note that material issues of fact remain regarding the total amount 17 Intervenors have assertedRespondent and Petitioner owe them in their motion for 18 summary judgment. The order granting summary judgment to Intervenors states that 197 $233,559.76 is owed to Intervenors and this holding appears to be solely based on 1 Intervenors’ assertions in the motion for summary judgment and Petitioner’s failure 2 to contradict that amount in her response. [RP 232- 235] Intervenors have not 3 indisputably proven that the $233,559.76 amount is due. In this regard, we note that 4 at the motions hearing, the district court judge attempted to verify how this amount 5 was arrived at by questioning Respondent hi mself. [RP 183-186] This colloquy may 6 improperly involve judicial fact finding outsi de the parameters of a ruling on a motion 7 for summary judgment. In addition, even if this colloquy took place during 8 adjudication of Petitioner’s motion to enforce after the motion for summary judgment 9 was granted, the issue of the total amount ow ed to Intervenors is an integral part of 10 Intervenors’ motion for summary judgment and the order derived therefrom. Hence, 11 judicial fact finding on this issue improperly involves adjudication of an unresolved 12 material issue of fact outside the parameters of a disposition on summary judgment. 13 Further, based on this colloquy, it appears that the district court discovered that the 14 $233,559.76 includes the $60,790.83 value of the New Mexico lot [RP 140], the 15 remaining amount due under Intervenors’ exhibit 5 to the motion for summary 16 judgment ($111,763.55) [RP 135], plus “approximately $49,000 to $50,000 more 17 which you think is interest.” [RP 183-186] Wenote, however, that the district court’s 18 findings of fact and conclusions of law en tered after the order granting the motion for 198 summary judgment on the $233,559.76 specifically state that Intervenors’ claim of 1 $60,790.83 for the New Mexico lot is void as a “bogus lien.” [RP 253 ¶ 38] 2 In the memorandum Intervenors continueto argue that Petitioner’s response to 3 the motion for summary judgment was inade quate [MIO 2], thereby disregarding this 4 Court’s reliance on existing New Mexico law that clearly provides that, 5 notwithstanding even an opposing parties’ completefailure to respond, the district 6 court must conclude, on the merits of th e motion, that granting summary judgment to 7 the moving party is appropriate. Lujan, 2003-NMCA-104, ¶ 18. The calendar notice 8 indicated why this Court considered that on the face of the summary judgment motion 9 and the record proper there remain material i ssues of fact and matters of law that make 10 granting summary judgment to Intervenors/Respondent inappropriate. 11 In the memorandum, Intervenors also assertthat the trial judge erred in granting 12 Petitioner more time to res pond but did not grant Intervenors time to respond to the 13 discussion of allowing Petitioner additional time. [MIO 3] Weregard this as all the 14 more reason for reversing the granting of summary judgment. 15 Further, Intervenors conte nd that the gifts and loans are “clearly distinguished” 16 from each other and the sum due and payable “clearly accounted for.” [MIO 4] 17 Intervenors argue that the legal and factual confusion as to the nature of the loans/gifts 18 and the total sum due and ow ing that Petitioner portrayed in her docketing statement 199 are matters discussed outside the summary judgment hearing and thus not properly 1 before the district court on summary judgment. [MIO 5] As set forth in the calendar 2 notice, however, the confusion as to the whether the sums advanced were all or 3 partially loans or gifts is evident on th e face of Intervenors’ motion for summary 4 judgment. The district court’s colloquy w ith Respondent as to the sum due and owing 5 indicates that material issues of fact re main with regard to that amount. Respondent 6 was present at the hearing even if Intervenors were not; and Respondent had joined 7 Intervenors’ motion for summary judgment. While the colloquy may represent 8 inappropriate judicial fact finding on an issu e that remains a materi al issue of fact, we 9 are not persuaded that the district c ourt engaged in inappropriate ex parte 10 communication or judicial misconduct. [MIO 7-9] Rather, we remain persuaded that, 11 even if this colloquy took place during adjudication of Petitioner’s motion to enforce 12 after the motion for summary judgment was granted, the issue of the total amount 13 owed to Intervenors clearly remains disputed and as this amount is an integral part of 14 Intervenors’ motion for summary judgment and the order granting summary judgment 15 derived therefrom, summary judgment seems improvidently granted. 16 Intervenors also state that the “appellatejudge misread the grant deed” and that 17 the “affidavit sets forth the transfers were lo ans.” [MIO 6] We are still not persuaded 18 that summary judgment is appropriate. To th e extent the affidavit asserts the transfers 1910 were loans when the deed equivocally shows otherwise, any agreement by Respondent 1 and Petitioner to repay Interve nors would have to be embodied in an oral contract. In 2 this regard, we agree with Petitioner’s legal analysis in her response to the motion for 3 summary judgment. [RP 147-48] The terms and conditions of any alleged oral 4 contract and the partial or total performance thereof, remain material issues of fact 5 precluding summary judgment. [Id.] In addition, the legal doctrine of the statute of 6 frauds may or may not, therefore, play a part in the analysis depending on the 7 resolution of these facts, precluding summary judgment at this time as a matter of law. 8 CONCLUSION 9 Under the circumstances, therefore, we hold that there remain material issues 10 of fact regarding the legal nature of some or all the transfers, th e existence of an oral 11 contract, the applicability of the statute of frauds to the facts of this case, and the total 12 amount due to Intervenors other than the stipulated amount of $87,000. Accordingly, 13 because there remain unresolved material issu es of fact and matters of law with regard 14 to Intervenors’ motion for summary judgment, we reverse the order granting the 15 motion and remand for trial. 16 IT IS SO ORDERED. 17

___________________________________ 18 RODERICK T. KENNEDY, Judge 1911 WE CONCUR : 1

___________________________ 2 JONATHAN B. SUTIN, Judge 3

___________________________ 4 TIMOTHY L. GARCIA, Judge 5