Downs v. Garay

742 P.2d 533, 106 N.M. 321
CourtNew Mexico Court of Appeals
DecidedAugust 11, 1987
Docket9383
StatusPublished
Cited by19 cases

This text of 742 P.2d 533 (Downs v. Garay) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Downs v. Garay, 742 P.2d 533, 106 N.M. 321 (N.M. Ct. App. 1987).

Opinion

OPINION

MINZNER, Judge.

Plaintiffs George Herman Downs, Steven Michael Downs, and Edward Downs (the Downs) appeal a judgment awarding defendant Richard Garay, Jr. (Garay) $100 in compensatory damages and $1,000 in punitive damages on a counterclaim for assault and battery. The trial court also awarded Herman Downs $155 compensatory damages against Garay for injuries arising out of another related incident, and the court enjoined all parties from harassing, bothering, molesting, or abusing one another; these rulings are not appealed. We affirm.

The Downs and Garay, who lives with his parents and his younger sister, are next-door neighbors. On May 11, 1985, Mrs. Downs told Garay’s sister to remove horse manure that the Garay’s horse had left on the Downs’ property. Garay then went to the Downs’ property to confront them about the matter. Garay and Herman Downs argued, and a fight ensued involving Garay and the Downs. One of the sons went into the house and brought out handcuffs. Garay was handcuffed and thrown to the ground. There is conflicting testimony about who struck the first blow and whether Garay was kicked after he was down on the ground. Herman Downs testified that in handcuffing and subduing Ga-ray he was making a citizen’s arrest for battery.

Plaintiffs filed suit against defendant Richard Garay, Jr. and other members of his family, seeking injunctive relief. The Garays asked for injunctive relief and also counterclaimed for damages. After another incident on January 5, 1986 involving Garay, Herman Downs, and his wife, the Downs amended their complaint to request damages for Herman Downs arising out of both incidents.

On appeal, the Downs argue that substantial evidence does not support the court’s finding as to the first incident that they are liable to Garay for assault and battery. They also contend that there is evidence to support a finding that Garay is liable for assault and battery for his actions at that time. They further contend that the trial court erred in awarding punitive damages against them and not awarding punitive damages against Garay for the later incident.

We affirm the trial court. We discuss: (1) whether substantial evidence supports the finding of liability against the Downs for assault and battery; (2) Herman Downs’ alleged citizen’s arrest; and (3) punitive damages.

SUBSTANTIAL EVIDENCE.

On appeal, the Downs are asking this court to reweigh the evidence, judge the credibility of the witnesses, and substitute our judgment for that of the trial court. This we cannot do.

In deciding whether a finding of the trial court is supported by substantial evidence, this court must view the evidence in the light most favorable to support the finding, and we do not consider any evidence unfavorable to the finding. Trujillo v. Romero, 82 N.M. 301, 481 P.2d 89 (1971). The reviewing court may not reweigh the evidence or substitute its judgment for that of the trier of fact. Sanchez v. Homestake Mining Co., 102 N.M. 473, 697 P.2d 156 (Ct.App.1985). The duty to weigh the credibility of witnesses and to resolve conflicts in the evidence rests within the province of the trial court, and not with the appellate court. Dibble v. Garcia, 98 N.M. 21, 644 P.2d 535 (Ct.App.1982). Findings supported by contradictory testimony are upheld on appeal as supported by substantial evidence. Brannock v. Brannock, 104 N.M. 416, 722 P.2d 667 (Ct.App.1985).

Downs has challenged nine of the sixteen findings of the trial court and four of the trial court’s eight conclusions of law. The findings that Garay shook his finger at Herman Downs, and he pushed it away; that Herman told his sons to go get his pistol, handcuffs, and blackjack; that he sat on Garay once he was down and forced his face into the ground; that Garay sustained contusions and abrasions; and that Herman Downs was displaying a Deputy United States Marshall’s badge are all supported by the testimony of witnesses or the inferences that may be drawn from their testimony. The Downs point to other evidence that would support different findings and a different result. However, the test to be applied on appeal is whether or not there is substantial evidence to support the trial court’s findings, not whether there is evidence to support an alternative result. Abbinett v. Fox, 103 N.M. 80, 703 P.2d 177 (Ct.App.1985).

Other challenged findings are not necessary to support the trial court’s judgment. For example, the court found that the two families had been arguing for some time about matters involving dogs and horses, that when Garay’s sister obtained a rifle, she did so because she believed her brother was in danger, and that Herman Downs has been employed in law enforcement for twenty-five years rather than sixteen years. None of these findings is essential to a conclusion that the Downs were liable for assault and battery. Even if these findings were not supported by evidence, erroneous findings of fact not necessary to support the judgment of the court are not grounds for reversal. Specter v. Specter, 85 N.M. 112, 509 P.2d 879 (1973).

We hold that the findings of the trial court are either supported by substantial evidence or are unnecessary to the court’s judgment. Therefore, we will not reverse on appeal.

CITIZEN’S ARREST.

Herman Downs testified that he placed Garay under citizen’s arrest for battery and later turned him over to a sheriff’s officer. At trial, Downs’ attorney argued that in New Mexico a citizen may arrest for a misdemeanor, but he did not give any authority for his argument. The Downs have challenged the court’s conclusion that a private citizen may not make a warrantless arrest for a petty misdemean- or. It is undisputed that battery is a petty misdemeanor. See NMSA 1978, § 30-3-4 (Repl.Pamp.1984).

At trial, the Downs argued that the citizen’s arrest was relevant because they contended Herman Downs had used reasonable force to defend himself. Self-defense is again argued in Downs’ reply brief.

However, in his brief-in-chief, Downs argues that a citizen’s arrest was proper because at common law a citizen was entitled to arrest a person who committed a breach of the peace in his presence, and Garay’s actions amounted to a breach of the peace. He argues that this rule applies in New Mexico because there is no statute covering the situation and the common law controls. See NMSA 1978, § 38-1-3. On appeal, the Downs claim the trial court erred in awarding Garay compensatory damages because Herman Downs was properly making a citizen’s arrest.

We note that Downs is correct that at common law a private person could arrest for a breach of the peace committed in his presence, as well as for a felony. See Restatement (Second) of Torts § 119 (1965).

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Bluebook (online)
742 P.2d 533, 106 N.M. 321, Counsel Stack Legal Research, https://law.counselstack.com/opinion/downs-v-garay-nmctapp-1987.