1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please

2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 

3 Please also note that this electronic memorandum opinion may contain computer-generated

4 errors or other deviations from the official paper version filed by the Court of Appeals and does

5 not include the filing date. 

6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 LEE STONE, 

8 Plaintiff-Appellant,

9 v. No. 30,426

10 COUNTY OF QUAY, QUAY 

11 COUNTY ROAD DEPARTMENT, QUAY 

12 COUNTY COMMISSIONER FRANKLIN 

13 MCCAUSLAND, QUAY COUNTY MANAGER 

14 RICHARD PRIMROSE, AND QUAY COUNTY 

15 ROAD SUPERINTENDENT, LARRY MOORE, 

16 Defendants-Appellees.

17 APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY

18 Albert Mitchell, District Judge

19 Lee Stone

20 San Jon, NM

21 Pro Se Appellant

22 Slease & Martinez, P.A.

23 William D. Slease

24 Jonlyn M. Martinez

25 Albuquerque, NM

26 for Appellees

27 MEMORANDUM OPINION
2

1 SUTIN, Judge.

2 Plaintiff appeals the summary judgment order entered in favor of Defendants.

3 We proposed to affirm in a calendar notice, and we have received both a

4 memorandum in support and a memorandum in opposition from the parties. We have

5 duly considered the arguments of the parties, but we are not persuaded that affirmance

6 is not the correct disposition in this case. We therefore affirm. 

7 Plaintiff continues to claim that the district court judge was biased, not

8 impartial, and ruled unjustly. In our calendar notice, we explained that we will not

9 search a record to find support for a litigant’s claims. In response, Plaintiff

10 supplements his docketing statement with references to documents in the record

11 proper that he claims support his arguments. [MIO 6-8] Ten of the twelve references

12 are to pleadings prepared and filed by Plaintiff. [Id.] A party opposing summary

13 judgment may not simply argue that evidentiary facts requiring a trial on the merits

14 may exist, “nor may [a party] rest upon the allegations of the complaint.” Dow v.

15 Chilili Coop. Ass’n, 105 N.M. 52, 54-55, 728 P.2d 462, 464-65 (1986). “[T]he briefs

16 and arguments of counsel are not evidence upon which a trial court can rely in a

17 summary judgment proceeding.” V.P. Clarence Co. v. Colgate, 115 N.M. 471, 472,

18 853 P.2d 722, 723 (1993). Instead, for purposes of summary judgment, the

19 non-movant may not rest on the pleadings, but must demonstrate genuine issues of
3

1 material fact by way of sworn affidavits, depositions, and similar evidence. Dow, 105

2 N.M. at 54-55, 728 P.2d at 464-65. We therefore reject Plaintiff’s contention that his

3 pleadings support reversal in this case.

4 The remaining two documents are orders entered by the district court. [RP 84,

5 486] The first is an order taking Defendants’ motion to dismiss under advisement and

6 allowing Plaintiff thirty days to amend his complaint to state a cognizable cause of

7 action. [RP 84] The order provides that if an amended complaint is not filed by

8 Plaintiff, then Defendants’ motion to dismiss will be granted. [Id.] Plaintiff claims

9 that this demonstrates that the district court believed there were genuine issues of

10 material fact remaining in the case. [MIO 6] The second order denies Plaintiff’s

11 motion for reconsideration and grants Defendants’ motion for attorney fees and costs.

12 [RP 485-86] Plaintiff claims that Defendants requested $15,711.70 in fees and costs,

13 but were awarded only $10,711.70. [MIO 8] Plaintiff argues that the difference of

14 $5000 was a deduction made by the district court for the unlawful acts by Defendants.

15 [Id.] We reject these claims as well.

16 The order allowing Plaintiff more time to file a complaint that stated a

17 cognizable cause of action does not, in any way, indicate that the district court

18 believed that Plaintiff’s complaints against Defendants were valid. In fact, the district

19 court made an explicit finding that Plaintiff continued to pursue his action “despite it
4

1 being clear that it lacked merit.” [RP 486] In addition, an award of attorney fees and

2 costs that is less than that requested cannot support Plaintiff’s argument that genuine

3 issues of material fact remained to be decided in the case, particularly in light of the

4 finding by the district court that Plaintiff’s claims had no merit. 

5 For the reasons discussed in this opinion and those discussed in our calendar

6 notice, we affirm the order granting summary judgment in favor of Defendants. 

7 IT IS SO ORDERED. 

8 __________________________________

9 JONATHAN B. SUTIN, Judge

10 WE CONCUR:

11 _________________________________

12 CELIA FOY CASTILLO, Judge

13 _________________________________

14 MICHAEL E. VIGIL, Judge