Dougherty v. Davis

• Court: New Mexico Court of Appeals
• Decided: August 20, 2013
• Docket: 32,687
• Status: Unpublished

Opinion

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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

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

2 CHARLES and JOANN DOUGHERTY, 3 husband and wife,

4 Plaintiffs-Appellees,

5 v. NO. 32,687

6 MARK AND JACKIE DAVIS,

7 Defendants-Appellants.

8 APPEAL FROM THE DISTRICT COURT OF CIBOLA COUNTY 9 Camille M. Olguin, District Judge

10 Rosebrough Law Firm, P.C. 11 Robert F. Rosebrough, Esq. 12 Gallup, NM

13 for Appellees

14 Lakins Law Firm, P.C. 15 Charles N. Lakins, Esq.

16 Albuquerque, NM

17 for Appellants 1 MEMORANDUM OPINION

2 WECHSLER, Judge.

3 {1} Defendants appeal the district court’s judgment awarding damages to Plaintiffs.

4 We issued a calendar notice proposing to affirm the judgment. Defendants’ attorney

5 has not filed a response to that calendar notice. However, Defendant Mark Davis did

6 e-mail a document entitled “Comments: TO JAMES J WECHSLER” to the court

7 system’s help desk. The e-mail was then forwarded to the Court of Appeals clerk’s

8 office, and a paper copy of the e-mail has been placed in this Court’s file. Despite the

9 unusual route this document has taken to come before the Court, we will consider its

10 contents.

11 {2} The document e-mailed by Defendant Mark Davis attacks the district court’s

12 judgment mainly by asserting that the Special Master’s decision was contrary to the

13 evidence. According to the document, Plaintiffs’ witnesses lied to the Special Master,

14 and the Special Master was “unable to read a topo map.” In other words, the

15 document essentially asks this Court to overturn the Special Master’s credibility

16 determinations and re-weigh the evidence in favor of Defendants rather than Plaintiffs.

17 However, as we explained in the calendar notice, this Court is required to view the 1 evidence in the light most favorable to the decision below. See Robertson v. Carmel

2 Builders Real Estate, 2004-NMCA-056, ¶ 28, 135 N.M. 641, 92 P.3d 653. We may

3 not overturn credibility determinations made by the district court, since we were not

4 present to see the witnesses testify or, as in this case, to personally view the physical

5 location of the dispute. See New Mexicans for Free Enter. v. City of Santa Fe,

6 2006-NMCA-007, ¶ 71, 138 N.M. 785, 126 P.3d 1149; Evans v. Taxation & Revenue

7 Dep't, 1996-NMCA-080, ¶¶ 9, 10, 122 N.M. 216, 922 P.2d 1212. Therefore, the

8 arguments raised in the e-mailed document are not a sufficient basis for reversal of the

9 district court’s judgment.

10 {3} For the reasons discussed in this opinion and in our calendar notice, we affirm

11 the judgment entered below.

12 {4} IT IS SO ORDERED.

13 ________________________________ 14 JAMES J. WECHSLER, Judge

15 WE CONCUR:

16 ________________________________ 17 MICHAEL D. BUSTAMANTE, Judge

18 ________________________________ 19 LINDA M. VANZI, Judge