Webster v. Serna ( 2016 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 MARGETTE WEBSTER and DAVID WEBSTER
3 Plaintiffs-Appellees,
4 v. No. 34,535 Consolidated with 34,755
5 EMMA SERNA, d/b/a SERNA &
6 ASSOCIATES CONSTRUCTION
7 CO., L.L.C. a/k/a/ SERNA &
8 ASSOCIATES,
9 Defendant-Appellant.
10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
11 Beatrice J. Brickhouse, District Judge
12 Alex Chisholm
13 Albuquerque, NM
14 for Appellees
15 Emma Serna
16 Albuquerque, NM
17 Pro Se Appellant
18 MEMORANDUM OPINION
19 ZAMORA, Judge.
20 {1} Emma Serna d/b/a Serna & Associates Construction Co., L.L.C., a/k/a Serna &
21 Associates (Appellant) attempts to appeal from various district court orders. Both this
1 Court’s first and second calendar notices proposed to affirm the district court.
2 Appellant filed a memorandum in opposition to the second notice of proposed
3 disposition as well as a letter and numerous pleadings in the form of requests and
4 motions. We remain unpersuaded and affirm the district court.
5 {2} We note that Appellant filed a notice of appeal from the district court’s
6 judgment adopting the arbitration award that was docketed under Court of Appeals
7 Case No. 34,755. Because that appeal involves the same underlying action appealed
8 from in this case, we consolidate the appeals by an accompanying order.
9 {3} Initially, we address the numerous pleadings filed by Appellant with this Court.
10 First, we do not consider Appellant’s letter or “Answer to Appellee’s Memorandum
11 in Support of Summary Affirmance” because they do not conform with our Rules of
12 Appellate Procedure regarding a proper response to a calendar notice. Rule 12-
13 210(D)(3) NMRA provides for the filing of a memorandum in opposition “setting
14 forth reasons why the proposed disposition should or should not be made and why the
15 case should or should not be assigned to the summary calendar.” We do not construe
16 Appellant’s letter and answer as conforming to this rule and limit our consideration
17 to the assertions contained in the informal memorandum in opposition.
18 {4} Appellant also filed numerous pleadings entitled as requests and motions, which
19 we deny. Appellant filed a motion for the recusal of the calendaring judge asserting
2
1 bias on the basis that her refusals to perform Appellant’s requests exhibit her bias and
2 prejudice against Appellant. Appellant essentially alleges that the calendaring judge
3 ruled contrary to her interest, which does not constitute bias. See Albuquerque
4 Bernalillo Cty. Water Util. Auth. v. N.M. Pub. Reg. Comm’n, 2010-NMSC-013, ¶ 42,
5 148 N.M. 21, 229 P.3d 494 (indicating that it is well settled that “adverse rulings do
6 not constitute bias”); State v. Hernandez, 1993-NMSC-007, ¶ 44, 115 N.M. 6, 846
7 P.2d 312 (“Personal bias cannot be inferred from an adverse ruling[.]”); United
8 Nuclear Corp. v. Gen. Atomic Co., 1980-NMSC-094, ¶ 425, 96 N.M. 155, 629 P.2d
9 231 (“Rulings adverse to a party do not necessarily evince a personal bias or prejudice
10 on the part of the judge against it even if the rulings are later found to have been
11 legally incorrect.”).
12 {5} Appellant also filed the following pleadings: (1) “Motion for Writ of Errors and
13 Issues of Fraud by Arbitrators Vacate Award”; (2) “Evidence of the Voluntarily
14 Accepting Something of Value that Influenced the Performance of the Officers of the
15 Court,” where she alleges that both the judge below and opposing counsel paid off
16 their mortgages and need to be investigated for their corruption; (3) “Request for the
17 Court to Overrule Both Arbitrations and Rule by the Enforced Contract,” wherein she
18 repeats the facts and procedural history leading up to the order to arbitrate and
19 subsequent orders entered below; and (4) “Motion to Introduce the Following
3
1 Evidence,” in which she makes allegations that she contends are proof of the
2 corruption by the judge and opposing counsel below.
3 {6} We deny Appellant’s requests and motions. The motions fail to comply with
4 Rule 12-309(C) NMRA, which requires the moving party to recite whether any other
5 party opposes the motion or why the other party’s position was not obtained. See
6 Newsome v. Farer, 1985-NMSC-096, ¶ 18, 103 N.M. 415, 708 P.2d 327 (“Although
7 pro se pleadings are viewed with tolerance, a pro se litigant, having chosen to
8 represent himself [or herself], is held to the same standard of conduct and compliance
9 with court rules, procedures, and orders as are members of the bar.” (internal citation
10 omitted)). In addition, they assert the same arguments Appellant continues to repeat
11 concerning her claims of error by the district court below in acting without jurisdiction
12 and this Court’s failure to prohibit the arbitration from occurring and to investigate the
13 alleged fraud by opposing counsel, the two arbitrators, and the presiding judge below.
14 These arguments were addressed in the first and second calendar notices, to which
15 Appellant had an opportunity to respond in her memorandum in opposition. For the
16 reasons above, we deny all of Appellant’s requests and motions.
17 {7} Appellant’s memorandum in opposition repeats the same arguments asserted
18 below and throughout the pendency of the appeal. Appellant continues to challenge
19 the district court judge’s actions below based on bias, prejudice and impropriety, but
4
1 does not point to any specific legal errors supported by authority. This Court’s first
2 and second notices of proposed disposition explain that while Appellant continuously
3 asserts she was aggrieved below, the district court’s actions were supported by law.
4 Appellant’s bare assertions and allegations of impropriety, absent supporting legal
5 authority, do not suffice to meet her burden on appeal. See Hennessy v. Duryea,
6 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly
7 held that, in summary calendar cases, the burden is on the party opposing the proposed
8 disposition to clearly point out errors in fact or law.”). “A party responding to a
9 summary calendar notice must come forward and specifically point out errors of law
10 and fact[,]” and the repetition of earlier arguments does not fulfill this requirement.
11 State v. Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d 1003,
12 superseded by statute on other grounds as stated in State v. Harris, 2013-NMCA-031,
13 ¶ 3, 297 P.3d 374; see Griffin v. Thomas, 1997-NMCA-009, ¶ 7, 122 N.M. 826, 932
14 P.2d 516 (“[A]n issue is deemed abandoned where a party fails to respond to the
15 calendar notice’s proposed disposition of the issue[.]”); Taylor v. Van Winkle’s IGA
16 Farmer’s Mkt., 1996-NMCA-111, ¶ 5, 122 N.M. 486, 927 P.2d 41 (same).
17 {8} For all of the above reasons, as well as those stated in this Court’s first and
18 second notices of proposed disposition, we affirm the district court.
19 {9} IT IS SO ORDERED.
5
1
2 M. MONICA ZAMORA, Judge
3 WE CONCUR:
4
5 MICHAEL D. BUSTAMANTE, Judge
6
7 JONATHAN B. SUTIN, Judge
6