This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations fr om the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 ERNEST J. GUTIERREZ, 2 Plaintiff-Appellant, 3
v. NO. 33,344 4 GLORIA GARLY, 5 Defendant-Appellee. 6 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY 7 Violet Otero, District Judge 8 Ernest Gutierrez 9 Santa Fe, NM 10 Pro Se Appellant 11 Gloria Garly 12 Los Lunas, NM 13 Pro Se Appellee 14 MEMORANDUM OPINION 15 HANISEE, Judge. 16 {1} Plaintiff appeals an order dismissing hi s claim against Defendant on the merits. 17 In our notice of proposed summary dispositi on, we proposed to affirm. In response to 182 this Court’s notice, Plaintiff has file d a memorandum in opposition, which we have 1 duly considered. As we do not find Plaintiff’s arguments to be persuasive, we affirm. 2 {2} Plaintiff appeals from the district court’ s order dismissing Plaintiff’s case after 3 finding that Plaintiff had failed to provide credible evidence to demonstrate that he 4 was entitled to damages. [DS 23] Plaintiff’s complaint alleged that Defendant 5 wrongfully sold or otherwise disposed of Plaintiff’s belongings after Defendant had 6 agreed to keep them for Plaintiff during the period that he wa s incarcerated. [RP 7-10] 7 Defendant failed to file an answer, and Pl aintiff filed a motion for default judgment. 8 [RP 29-30] After a hearing on Plaintiff’s motion, the district court declined to enter 9 a default judgment and instead ordere d a deputy to accompany Plaintiff to 10 Defendant’s home to collect those of Plain tiff’s things that Defendant still had. [RP 11 34] Plaintiff then filed a notice with the district court to inform it of what items he 12 asserted he had not been able to rec over from Defendant’s home. [RP 35-45] In an 13 effort to obtain a ruling regarding the remainder of his property, Plaintiff filed a 14 motion, which he called a Motion for C ontempt. [RP 49-50] On November 9, 2009, 15 the district court held a hearing on the motion and then dismissed Plaintiff’s 16 complaint, apparently without formally taking evidence. [RP 51, 64, 72-73] Plaintiff 17 appealed, and this Court proposed to reverse. [RP 70-76] Having received no 18 memorandum in opposition to our notice of proposed summary disposition, we issued 193 a memorandum opinion reversing and remanding for an evidentiary hearing on 1 Plaintiff’s claim regarding the items he asserted that he had not been able to recover. 2 [RP 92-93] 3 {3} On remand, the district co urt held a hearing and entered findings of fact. [RP 4 147-51] At the hearing, Defendant testifie d that Plaintiff had retrieved everything 5 belonging to him that had been in her possession. [RP 149-50] Although Plaintiff 6 presented contrary testimony, the district court weighed the credibility of the 7 witnesses and found that Plaintiff’s testimony was not credible. [RP 150] Accordingly, 8 the district court concluded that Plainti ff had failed to prove that he was entitled to 9 damages. [RP 151] Plaintiff appealed a second time, and this Court proposed to affirm, 10 noting that on appeal, this Court does not reweigh the evidence or substitute its 11 judgment for that of the factfinder. See Webb v. Menix , 2004-NMCA-048, ¶ 8, 135 12 N.M. 531, 90 P.3d 989 (explaining that the duty to weigh the credibility of witnesses 13 and to resolve conflicts in the evidence is fo r the district court, and this Court will not 14 reweigh the evidence or substitute our judgment for the trier of fact on appeal). 15 Plaintiff has filed a memorandum in opposition, which is primarily directed at events 16 that occurred prior to Plai ntiff’s first appeal. [MIO 1-3] However, as Plaintiff 17 succeeded in that appeal, and as Plaintiff s ubsequently received anevidentiary hearing 18 on the merits, these arguments do not provide a basis for reversal. 194 {4} In addition, Plaintiff has attached additional evidence to his memorandum in 1 opposition, which this Court does not consider. See Jemko, Inc. v. Liaghat , 2 1987-NMCA-069, ¶ 22, 106 N.M. 50, 738 P.2d 922 (“It is improper to attach to a 3 brief documents which are not part of the record on appeal.”). As an appellate court, 4 we only review matters actually presented to the district court. 5 {5} Accordingly, for the reasons stated here and in our notice of proposed summary 6 disposition, we affirm. 7 {6} IT IS SO ORDERED. 8

_________________________ 9 J. MILES HANISEE, Judge 10
WE CONCUR: 11

__________________________________ 12 JAMES J. WECHSLER, Judge 13

__________________________________ 14 M. MONICA ZAMORA, Judge 15