1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO MARCELINO REYES, 8 Plaintiff-Appellant, v. No. 28,502 STATE OF NEW MEXICO DEPARTMENT OF TRANSPORTATION, 12 Defendant-Appellee.

13 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY James A. Hall, District Judge Donald R. Sears Jr. Albuquerque, NM for Appellant Montgomery & Andrews PA Holly Agajanian Santa Fe, NM for Appellee 22 MEMORANDUM OPINION SUTIN, Judge.

1 Summary affirmance was proposed for the reasons stated in the notice of proposed summary disposition. No memorandum opposing the disposition was filed.

3 As a result, a memorandum opinion was filed in this case on March 26, 2009, affirming the district court. Appellant filed a motion for rehearing on April 14, 2009.

5 On April 21, 2009, because Appellant’s counsel represented that he had not received the calendar notice of proposed summary disposition, this Court granted the motion for rehearing, and our March 26, 2009, memorandum opinion was withdrawn. No memorandum opposing summary affirmance was timely filed in response to this Court’s April 21, 2009, order, which set a response time for May 11, 2009.

10 Appellant’s counsel did file a memorandum opposing this Court’s proposed summary disposition on June 25, 2009. Because of this late filing, this Court filed an Order to Show Cause on August 11, 2009, requiring counsel to respond to the order no later than August 19, 2009. Upon consideration of counsel’s response, this Court has held that Appellant’s untimely memorandum in response to the calendar notice would not be considered for the reasons expressed in this Court’s order filed simultaneously with this opinion.

17 We affirm the district court.

18 IT IS SO ORDERED.

19 __________________________________ 20 JONATHAN B. SUTIN, Judge WE CONCUR:

1 ____________________________ CELIA FOY CASTILLO, Judge

3 ____________________________ MICHAEL E. VIGIL, Judge