Roberts v. George

Opinion

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

2 JAMES D. ROBERTS and 3 LINDA ROBERTS,

4 Plaintiffs/Counterdefendants-Appellees, 5 v. NO. A-1-CA-35232 6 CAROLINE GEORGE, 7 Defendant/Counterplaintiff/Third-Party Plaintiff-Appellant, 8 v.

9 SIERRA COUNTY TITLE COMPANY, 10 JOSH ASHBAUGH, COLLEEN GREER, 11 and RANDY ASHBAUGH,

12 Third-Party Defendants-Appellees.

13 APPEAL FROM THE DISTRICT COURT OF SIERRA COUNTY 14 Mercedes C. Murphy, District Judge

15 Miller Stratvert P.A. 16 Cody R. Rogers 17 Holly Agajanian 18 Las Cruces, NM

19 for Appellees

20 Caroline George 21 Phoenix, AZ

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1 Pro Se Appellant

2 MEMORANDUM OPINION 3 VANZI, Chief Judge. 4 {1} After a bench trial, the district court entered judgment in favor of Plaintiffs, 5 James and Linda Roberts, and against Defendant, Caroline George, on Plaintiffs’ 6 breach of contract claim. The court dismissed Defendant’s counterclaims and cross- 7 claims against third-party defendants prior to the end of trial as a sanction for ongoing 8 discovery abuses by Defendant. Although she is a former attorney, Defendant, who 9 is proceeding pro se in this case, has presented many arguments on appeal that are 10 difficult, if not impossible, to understand. This Court will review pro se arguments to 11 the best of its ability but cannot respond to unintelligible arguments. See Clayton v. 12 Trotter, 1990-NMCA-078, ¶ 12, 110 N.M. 369, 796 P.2d 262 (noting that “a pro se 13 litigant is bound by all of the rules applicable to litigants represented by attorneys”). 14 Of greater consequence, and far more troublesome, is the fact that Defendant 15 repeatedly misrepresents facts of the district court proceedings in her briefing on 16 appeal. 17 {2} As best as this Court can determine, Defendant argues the district court (1) 18 erroneously excluded her handwriting expert while admitting improper lay testimony

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1 on the subject, (2) erroneously dismissed her counterclaims as a sanction for discovery 2 violations, and (3) displayed bias against her by failing to recuse. Defendant also 3 argues an assortment of other unpreserved issues. We affirm. 4 {3} Because this is a memorandum opinion and the parties are familiar with the 5 facts and procedural history of the case, it is unnecessary for us to repeat them here, 6 except as required for our analysis. 7 DISCUSSION 8 Standard of Review 9 {4} For the most part, we review the issues raised by Defendant under an abuse of 10 discretion standard. The district court’s decision whether to admit expert testimony 11 under the Daubert-Alberico factors is reviewed for abuse of discretion. State v. 12 Tollardo, 2003-NMCA-122, ¶ 16, 134 N.M. 430, 77 P.3d 1023. Whether those factors 13 apply to proposed testimony, however, is a question of law that we review de novo. 14 Id. ¶ 9. We review challenges to a district court’s evidentiary ruling only to ensure that 15 the district court did not abuse its discretion. Hansen v. Skate Ranch, Inc., 1982- 16 NMCA-026, ¶ 22, 97 N.M. 486, 641 P.2d 517 (“It is [a] well known rule in the State 17 of New Mexico that the admissibility of lay opinion testimony is within the discretion 18 of the trial court and an appellate court will not overturn the decision of the trial court 19 absent an abuse of any discretion.”). We also review the imposition of sanctions for 20 abuse of discretion. Enriquez v. Cochran, 1998-NMCA-157, ¶ 20, 126 N.M. 196, 967

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1 P.2d 1136. Finally, we review the denial of a motion to recuse under the same 2 standard. State v. Trujillo, 2009-NMCA-128, ¶ 9, 147 N.M. 334, 222 P.3d 1040. “An 3 abuse of discretion occurs when a ruling is clearly contrary to the logical conclusions 4 demanded by the facts and circumstances of the case.” Sims v. Sims, 1996-NMSC-078, 5 ¶ 65, 122 N.M. 618, 930 P.2d 153. 6 Defendant’s Briefing Misrepresented the Facts Below 7 {5} Our Supreme Court has long held that pro se litigants are held to the same 8 standard of conduct and compliance as attorneys. Newsome v. Farer, 1985-NMSC- 9 096, ¶ 18, 103 N.M. 415, 708 P.2d 327. Rule 16-303 NMRA of the Rules of 10 Professional Conduct requires members of the bar to maintain candor toward the 11 tribunal. Rule 16-303(A)(1) (“A lawyer shall not knowingly . . . make a false 12 statement of fact or law to a tribunal or fail to correct a false statement of material fact 13 or law previously made to the tribunal by the lawyer[.]”). 14 {6} Defendant’s myriad of false statements to this Court regarding the proceedings 15 below not only waste limited judicial resources but repeatedly violate the rules 16 imposed on both members of the bar and pro se parties. As Defendant’s arguments in 17 her briefing were based nearly entirely on misrepresentations of the record and are 18 manifestly without merit in violation of the Rules of Appellate Procedure, we dispose 19 of those arguments as briefly as possible. See Rule 12-405(B)(5) NMRA. 20 Defendant’s Proposed Handwriting Expert

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1 {7} Defendant attempted to introduce a handwriting expert at trial in an effort to 2 mount a forgery defense against Plaintiff’s claims that Defendant breached a real 3 estate contract. Defendant first argues that the district court erroneously applied the 4 Daubert-Alberico standard for scientific evidence to her proposed handwriting expert. 5 See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); State v. Alberico, 6 1993-NMSC-047, 116 N.M. 156, 861 P.2d 192. However, she makes no legal 7 argument and cites no authority in support of this position. While we stated in 8 Quintana v. Acosta, 2014-NMCA-015, ¶ 14, 316 P.3d 912 that the Daubert-Alberico 9 factors apply only when the district court is evaluating the admissibility of scientific 10 evidence, Defendant fails to refer us to Quintana or argue its applicability to the issue 11 Defendant now raises. We therefore do not review it.

12 We have long held that to present an issue on appeal for review, an 13 appellant must submit argument and authority as required by rule. We 14 assume where arguments in briefs are unsupported by cited authority, 15 counsel after diligent search, was unable to find any supporting 16 authority. We therefore will not do this research for counsel. Issues 17 raised in appellate briefs which are unsupported by cited authority will 18 not be reviewed by us on appeal.

19 In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 (citations 20 omitted). 21 {8} We briefly address Defendant’s argument that the district court found that her 22 proposed expert was qualified as an expert in handwriting but still wrongly excluded 23 her in part because she lacked law enforcement experience. The district court, in fact,

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1 did not exclude the proposed expert because of a lack of law enforcement experience, 2 but because the court found her to be unqualified. Of significance, law enforcement 3 experience was never raised below by any party nor was it considered by the court in 4 its decision to exclude the handwriting expert. Rule 12-318(A)(4) NMRA requires an 5 appellant to

6 set forth a specific attack on any finding, or the finding shall be deemed 7 conclusive. A contention that a verdict, judgment, or finding of fact is 8 not supported by substantial evidence shall be deemed waived unless the 9 argument identifies with particularity the fact or facts that are not 10 supported by substantial evidence[.]

11 As Defendant has raised no facts and cited no authority properly attacking the district 12 court’s findings excluding the proposed expert from providing expert handwriting 13 testimony, we deem those findings conclusive and affirm the district court’s decision. 14 Lay Testimony Identifying Handwriting 15 {9} At trial, Plaintiff Linda Roberts testified she was familiar with Defendant’s 16 signature. Defendant claims the testimony of Plaintiff and of other lay witnesses about 17 Defendant’s handwriting was improper and should not have been admitted because 18 Plaintiff was motivated to falsely claim she recognized the initials in the hopes of 19 receiving a favorable judgment and recovery. Defendant fails to disclose on appeal the 20 fact that she agreed and conceded at trial that her own lay-witness testimony as well 21 as the testimony of a third-party defendant about her handwriting is admissible under 22 New Mexico law. Indeed, it is well established that expert opinion is not necessary to

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1 establish the identity of a writer. State v. Rotibi, 1994-NMCA-003, ¶ 21, 117 N.M. 2 108, 869 P.2d 296. Plaintiff’s argument has no merit. 3 {10} Even after conceding the legal issue, Defendant continued to object to 4 Plaintiff’s testimony on the basis of lack of foundation. Defendant did not raise her 5 foundation argument on appeal, and we do not discuss it further. State v. Correa, 6 2009-NMSC-051, ¶ 31, 147 N.M. 291, 222 P.3d 1 (“On appeal, issues not briefed are 7 considered abandoned, and we do not raise them on our own.”). She also objected 8 below to the testimony as prejudicial. As Defendant provides no reasoning or 9 authority to support her claims of prejudice beyond asserting that Plaintiff was a party 10 opponent, we decline to further examine this issue. See In re Doe, 1984-NMSC-024, 11 ¶ 2. “An assertion of prejudice is not a showing of prejudice.” State v. Hoxsie, 1984- 12 NMSC-027, ¶ 8, 101 N.M. 7, 677 P.2d 620, overruled on other grounds by Gallegos 13 v. Citizens Ins. Agency, 1989-NMSC-055, ¶ 28, 108 N.M. 722, 779 P.2d 99.

14 Dismissal of Cross-Claims and Counterclaims as Sanction for Repeated 15 Discovery Abuses

16 {11} The district court dismissed Defendant’s counterclaims and cross-claims as a 17 sanction for her egregious and ongoing discovery violations, culminating in her 18 attempt on the last day of trial to introduce emails that should have been previously

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1 produced and were visibly altered. Plaintiffs correctly note that, while Defendant 2 makes numerous arguments about the actions of the court and opposing counsel, she 3 fails to directly attack any specific finding. She cites no legal authority beyond 4 arguing that the district court applied the wrong standard of review. She also 5 ultimately fails to directly argue that dismissal of her cross-claims and counterclaims 6 was error or otherwise improper. 7 {12} The appellate court presumes that the district court is correct. The burden is on 8 the appellant to clearly demonstrate that the district court erred. Farmers, Inc. v. Dal 9 Mach. & Fabricating, Inc., 1990-NMSC-100, ¶ 8, 111 N.M. 6, 800 P.2d 1063. “Issues 10 raised in appellate briefs which are unsupported by cited authority will not be 11 reviewed by us on appeal.” In re Adoption of Doe, 1984-NMSC-024, ¶ 2. Defendant 12 has failed to carry her burden, and we therefore conclude that the district court’s 13 assessment of sanctions was not an abuse of discretion.

14 Accusations of Judicial Bias 15 {13} Defendant asserts judicial bias by the district court. Although she argues that 16 every judge who presided over the case below should have recused, Defendant makes 17 only one preserved argument on the matter, claiming the last district judge in the case 18 wrongly denied Defendant’s motion for recusal. We repeat that we do not address any

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1 unpreserved or nonspecific arguments of bias. See Woolwine v. Furr’s, Inc., 1987- 2 NMCA-133, ¶ 20, 106 N.M. 492, 745 P.2d 717 (“To preserve an issue for review on 3 appeal, it must appear that [the] appellant fairly invoked a ruling of the trial court on 4 the same grounds argued in the appellate court.”). We briefly dispense with 5 Defendant’s sole preserved argument. 6 {14} Twenty-four days before trial, Defendant filed a motion for the district court to 7 recuse for cause. Without authority, she argued the court had a conflict of interest that 8 required recusal. Defendant asserted the presiding judge had been involved as a 9 prosecutor in a previous unrelated case against Third-Party Defendant, Josh 10 Ashbaugh. Defendant accused the prosecutors in the unrelated case of giving 11 preferential treatment to Ashbaugh but failed to provide any evidence, testimony, or 12 legal authority supporting either this accusation or her claim of resultant bias against 13 her in the present case.1

1 19 It is undisputed that the district court was not a prosecutor on the case, but 20 merely signed pleadings in the prosecuting attorney’s absence. It was found by the

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1 {15} Defendant also argued it was biased for the court to mention that it anticipated 2 Daubert motions after the parties disclosed they may call expert witnesses. Defendant 3 further believes bias was shown by the district court when it ruled adversely to her. 4 These instances cannot and do not demonstrate bias. See State v. Hernandez, 1993- 5 NMSC-007, ¶ 44, 115 N.M. 6, 846 P.2d 312 (stating that adverse rulings or 6 enforcement of the rules does not establish judicial bias). We also reject Defendant’s 7 unsupported argument that a judge should not hold a pro se party to the same 8 standards as attorneys. Pro se litigants are held to the “same standard of conduct and 9 compliance with court rules, procedures, and orders as are members of the bar.” 10 Newsome, 1985-NMSC-096, ¶ 18. What is most troubling is that Defendant here 11 actually has legal training and experience, and she is more equipped than a typical pro 12 se party to represent herself in compliance with the same standards as members of the 13 bar. 14 {16} Defendant wholly failed to demonstrate any personal involvement by the judge, 15 nor did she establish any other legitimate reasons for disqualification. See State ex rel. 16 Bardacke v. Welsh, 1985-NMCA-028, ¶ 63, 102 N.M. 592, 698 P.2d 462 (holding that 17 a judge need not disqualify himself when the movant cannot demonstrate that the

18 court that, in addition to a telephonic approval of the complaint, the court’s signature 19 was only on one document: a stipulated order to set bond that was subsequently 20 amended by the prosecutor.

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1 judge is personally embroiled in the case, and when the movant raises no legitimate 2 reasons for disqualification). “Recusal is only required when a judge has become so 3 embroiled in the controversy that he or she cannot fairly and objectively hear the 4 case.” Trujillo, 2009-NMCA-128, ¶ 11 (alterations, internal quotation marks, and 5 citation omitted). In determining whether an objective observer would conclude that 6 a judge’s impartiality was questionable, “an appellate court should look to see how the 7 judge arrived at the decision not to recuse and then should review the judge’s actions 8 for bias.” State v. Riordan, 2009-NMSC-022, ¶ 11, 146 N.M. 281, 209 P.3d 773. “In 9 Riordan, the fact that no objective evidence of bias on the part of the court was 10 presented indicated that there was no impropriety for the court to remain on the case.” 11 Trujillo, 2009-NMCA-128, ¶ 10. Whether a judge should excuse himself is within the 12 conscience and discretion of the judge. State v. Harris, 1997-NMCA-119, ¶ 14, 124 13 N.M. 293, 949 P.2d 1190. Further, there must be a reasonable, factual basis for 14 doubting the judge’s impartiality. See Bardacke, 1985-NMCA-028, ¶ 63. 15 {17} As a final matter, we emphasize that the district court’s previous contact with 16 one party in the case was negligible and not of a nature that would cause an objective 17 observer to question its impartiality. And because adverse rulings against Defendant 18 are not evidence of bias, we affirm the district court’s denial of Defendant’s motion 19 to recuse. Our review of the record demonstrates that, to the contrary, the district court 20 here displayed exceptional patience in addressing Defendant’s unintelligible and

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1 unsupported arguments and made a clear record of its findings and conclusions on 2 each ruling reviewed on appeal. 3 Unpreserved Arguments Are Not Considered on Appeal 4 {18} Defendant appears to raise issues as to the merits of the district court’s 5 judgment in favor of Plaintiffs regarding contract law interpretation. As she cites to 6 no place in the record where her argument was raised below, we decline to review it. 7 We do not review arguments that are raised for the first time on appeal. See Campos 8 Enters. v. Edwin K. Williams & Co., 1998-NMCA-131, ¶ 12, 125 N.M. 691, 964 P.2d 9 855. 10 CONCLUSION 11 {19} We affirm the district court’s ruling in all respects. 12 {20} IT IS SO ORDERED.

13 __________________________________ 14 LINDA M. VANZI, Chief Judge

15 WE CONCUR:

16 _________________________________ 17 MICHAEL E. VIGIL, Judge

18 _________________________________ 19 HENRY M. BOHNHOFF, Judge