IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO 2 HUMAN RIGHTS COMMISSION, 3 Petitioner-Appellee, 4 v. No. 28,756 5 ALLIANCE COMMUNICATION, 6 Respondent-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Valerie M. Huling, District Judge 9 N.M. Human Rights Commission 10 Sonny R. Swazo, Assistant Attorney General 11 Tania Maestas, Assistant Attorney General 12 Santa Fe, NM 13 for Appellee 14 Dennis W. Montoya 15 Rio Rancho, NM 16 for Appellant 17 MEMORANDUM OPINION 18 SUTIN, Judge. 19 The district court entered an order en forcing an order and judgment of the 20 Human Rights Commission (the Commission). [RP 126] Respondent, Alliance 21 Communication, moved to reco nsider. The court denied the motion [RP 129], and 222 Respondent appealed. Our notice of proposed summary disposition proposed to 1 affirm. Respondent filed a memorandum in opposition. We have considered 2 Respondent’s arguments, but are not persuaded by them. Accordingly, we affirm the 3 district court’s order denying Respondent’s motion to reconsider. 4 BACKGROUND 5 The Commission entered an order and j udgment in favor of Gary Townsend. 6 [RP 7] The Commission found that Mr. Townsend was an employee of Respondent, 7 that Respondent did not pay him for three periods of time in 2002, and that 8 Respondent terminated him based on a disab ility and because of his race. [RP 7-9] 9 The Commission found damages, costs, and interest due to Mr. Townsend in the 10 amount of $15,168.22. [RP 7-9] The Commi ssion then filed this action in district 11 court to enforce the Commissi on’s order. [RP 1] The court ordered enforcement of 12 the order. [RP 126] Respondent filed a moti on to reconsider the court’s order, which 13 was denied. [RP 129] 14 DISCUSSION 15 Respondent argues that the court should have granted its motion to reconsider 16 the court’s order enforcing the order and judgment of the Commission. [Amended DS 17 7] We review a district court’s ruling on a motion to reconsider for an abuse of 183 discretion. See GCM, Inc. v. Kentucky Cent. Life Ins. Co. , 1997-NMSC-052, ¶ 28, 1 124 N.M. 186, 947 P.2d 143. 2 A. Notice 3 Respondent claims that it did not have appropriate notice, and therefore the 4 Commission’s order and judgment cannot stand. The Human Rights Act requires that 5 a respondent be served “personally or by re gistered mail, return receipt requested.” 6 See NMSA 1978, § 28-1-10(F) (2005). We reviewthe question of notice as a mixed 7 question of law and fact. See Cordova v. N.M. Taxation & Revenue Dep’t , 2005- 8 NMCA-009, ¶ 17, 136 N.M. 713, 104 P.3d 1104 ( observing that the appellate court 9 defers to the district court’s findings that are supported by substantial evidence, but 10 independently reviews the legal effect of the facts so es tablished). Respondent claims 11 that its agent, Mr. Ernest Chavez, was never notified. [MIO 2-4] 12 The record contains substantial evidence that Respondent was provided with 13 the notice required by statute and had actual no tice. Mr. Chavez is listed as the owner, 14 president, and registered agent of Respondent. [RP 80-81] The initial certified letter 15 sent to Mr. Chavez was returned by the pos t office. [RP 71, 84, 89] The Human 16 Rights Division’s (the Division) investigator learned that Mr. Ch avez had an address 17 at 4130 Rio Grande N.W., in Albuquerque, and on February 10, 2003, the investigator 184 re-mailed the letter to Mr. Ch avez at that address. [RP 71, 84] On February 13, 2003, 1 Mr. Chavez called the investig ator to inquire about the case and stated he would be 2 submitting a response to the complaint. [RP 72, 85] On February 17, 2003, the 3 investigator mailed another letter to Mr. Chavez at the Rio Grande address regarding 4 a prospective probable cause determination. On April 4, 2003, the Division director 5 issued a probable cause determination letter and set a hearing date of December 3 and 6 4, 2003. [RP 72, 85, 91] Th is letter was sent by certified mail to Mr. Chavez at the 7 Rio Grande address. [RP 72, 85, 89] Mr. Chavez signed for the letter on April 7, 8 2003. [RP 72, 85, 89] On Ap ril 7, a second letter was sent to Mr. Chavez at the Rio 9 Grande address. [RP 72, 93] On April 25, 2003, a third letter was sent to the same 10 address. [RP 72] On June 25, 2003, the Division sent a letter to Mr. Townsend with 11 a copy to Mr. Chavez. [RP 73, 95-96] 12 In October 2003, Mr. Chavez began havi ng his mail forwarded to the office of 13 Mr. Joe Romero, Jr., a director of Responde nt, at an address on Lomas Boulevard. 14 [RP 73] On November 19, 2003, the Division mailed by certified mail a letter to 15 Respondent at the Rio Grande address, no tifying him of the hearing on December 3. 16 [RP 73] The letter was signed for by Ms. Maribel Ortega, who received the forwarded 17 letter at the Lomas address. [Id.; RP 101-04] She had been instructed to put Mr. 185 Chavez’s mail in a basket, and he would pi ck it up. [RP 73, 103 (p. 12)] She stated 1 that she put the letter in Mr. Chavez’s mail basket. [RP 103 (p. 12)] Respondent did 2 not appear at the December hearing. [RP 74] 3 In contrast to this evidence, in response to the Commissioner’s motion in the 4 district court for an order enforcing th e Commission’s order, Respondent offered only 5 the affidavit of Mr. Chavez, which merely stated that he was never notified of the 6 action or of any hearing before the Commi ssion. [RP 113 (¶ 14)] However, there was 7 substantial evidence that Mr. Chavez was properly notified, and the district court was 8 not required to accept Mr. Chav ez’s version of events. Cf. State v. Rojo , 1999-NMSC9 001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (“Contrary evidence supporting acquittal does 10 not provide a basis for reversal because the jury is free to reject [the d]efendant’s 11 version of the facts.”). 12 Respondent’s memorandum argues that the facts about notice are disputed and 13 then relies on summary judgment standards toargue that the district court could not 14 reject its claim of lack of notice because th ere were genuine issues of material fact. 15 [MIO 3-4] This argument misses the mark. This is not a case involving summary 16 judgment. Respondent’s claim that it receive d no notice was a question for the district 176 court to resolve. The court considered th e evidence and resolvedthe question against 1 Respondent. 2 Finally, in its memorandum, Respondent nowclaims that “there was never a 3 hearing below” on the notice issue. [MIO 4] We interpret this as a due process claim. 4 Respondent’s argument that there was never a hearing on the notice issue was not 5 raised in its first docketing statement (whi ch we rejected as noncompliant with our 6 appellate rules), or in its amended docketing statement, which only argued that, as a 7 matter of fact, Respondent did not receive noti ce. We have reviewed the record, and 8 do not see that Respondent’s new due proce ss claim—that there was never a hearing 9 at all—was raised below. Nor was it raisedin its amended docketing statement. For 10 the first time, in its memorandum, Respondent claims there was no hearing on the 11 notice issue. [MIO 4] However, Responde nt has not moved toamend its amended 12 docketing statement to raise this new issue. See Rule 12-208(F) NMRA. Without a 13 motion to amend, this argument need not be addressed. Cf. State v. Lucero , 109 N.M. 14 298, 304-05, 784 P.2d 1041, 1047-48 (C t. App. 1989) (holding that an issue that was 15 not raised in the docketing statement, or in a timely motion to amend, need not be 16 considered), overruled on other grounds by State v. Casaus , 1996-NMCA-031, 121 17 N.M. 481, 913 P.2d 669. 187 Additionally, the record belies Respondent’s assertion. The record indicates 1 that on March 7, 2006, “the parties appeared before [the district court] at a hearing on 2 the matter, evidence was presented, and the Court ordered Respondent to file a 3 response within ten (10) days regardi ng the issue of whether Respondent received 4 proper notice of the case before the Co mmission.” [RP 74] According to the 5 Commission, Respondent failed tofile a responsive pleading. [RP 74] The record 6 also indicates that on September 12, 2007, Respondent filed its response to the 7 Commission’s motion to enforce, claiming that Respondent had no notice. [RP 107- 8 08] The record reflects there was a h earing, on December 3, 2007, on the motion to 9 enforce the Commission’s judgment. [RP 115] Therefore, Respondent was able to 10 make its argument that it had no notice and to support its argument with evidence. It 11 could have done so by briefing and certainlycould have done so at the hearing on 12 December 3, 2007. There is nothing in the record to indicate that Respondent asked 13 the court for time or opportunity to pres ent evidence regarding notice. Respondent’s 14 argument that there was never a hearing on notice and the implication that it was 15 denied due process are unpersuasive. The record supports a conclusion that 16 Respondent had multiple opportunities to be heard on this specific issue. 178 Consequently, we reject Respondent’s claim that there was never a hearing and that 1 it was denied due process. 2 For these reasons, we hold that the ev idence supports a finding and conclusion 3 that Respondent had proper notice and that Respondent has not demonstrated that the 4 court erred in enforcing the Commission’s order. 5 B. Substantial Evidence 6 Respondent also contends that it is not recognized in the “category” 7 contemplated by the Human Rights Act. [Ame nded DS 7] We interpret this to mean 8 that the Act does not apply because Mr. To wnsend was not its employee. Our notice 9 proposed to affirm on this issue because Respondent did not inform us of the 10 argument nor of the evidence pres ented to the district court, and we are not told of the 11 reasoning by the district court in rejecting the argument. See Farmers, Inc. v. Dal 12 Mach. & Fabricating, Inc. , 111 N.M. 6, 8, 800 P.2d 1063, 1065 (1990) (stating that 13 the appellate court presumes th at the trial court is correct, and that the burden is on the 14 appellant to clearly demonstrate that th e trial court erred). In its memorandum, 15 Respondent has not responded to our concern, but instead continues to rely solely on 16 the affidavit of Mr. Chavez, while giving us no information about contrary evidence. 17 [MIO 5] We could affirm for this reason alone. See Amrep Southwest v. Town of 189 Bernalillo , 113 N.M. 19, 22, 821 P.2d 357, 360 (Ct. App. 1991) (rejecting the 1 appellant’s claim that the ev idence was inadequate to s upport the factfinder’s decision 2 because the appellant did not set forth the re levant evidence). We also note that Mr. 3 Chavez’s affidavit refers to three exhibits th at are attached to it, but the record does 4 not contain these exhibits. [RP 110-14] “M atters outside the record present no issue 5 for review.” State v. Reynolds , 111 N.M. 263, 267, 804 P.2d 1082, 1086 (Ct. App. 6 1990). 7 Moreover, whether Mr. Townsend was an employee is a factual issue that was 8 resolved against Respondent before the Commission and enforced by the district 9 court. [RP 5 (FOF 1)] “[W]hen there is a conflict in the testimony, we defer to the 10 trier of fact.” Buckingham v. Ryan , 1998-NMCA-012, ¶ 10, 124 N.M. 498, 953 P.2d 11 33. We assume that, during the administrative hearing, Mr. Townsend testified that 12 he was employed by Respondent. Additionally, there is evidence inthe record that 13 Mr. Townsend was listed on a doc ument filed with the New Mexico Public Regulation 14 Commission as a vice president of Respondent. [RP 81] Respondent has failed to 15 demonstrate that there is not substan tial evidence supporting the finding that Mr. 16 Townsend was its employee. 1710 In its memorandum in opposition, Respondent again relies on summary 1 judgment standards to argue that there is a genuine issue of material fact about 2 whether Mr. Townsend was its employee. [MIO 5] But this is not a summary 3 judgment proceeding. The Commission and th e district court reviewed the evidence, 4 and ultimately decided that Mr. To wnsend was an employee of Respondent. 5 Whatever genuine issue of material fact existed has now been decided. Respondent’s 6 reliance on summary judgment standards is unpersuasive. 7 For the foregoing reasons, we affirm the district court’s order denying 8 Respondent’s motion to reconsider. 9 IT IS SO ORDERED. 10

__________________________________ 11 JONATHAN B. SUTIN, Judge 12

WE CONCUR: 13

_________________________________ 14 CYNTHIA A. FRY, Chief Judge 15

_________________________________ 16 CELIA FOY CASTILLO, Judge 17