Conger and Stuart v. Jacobson

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 CHARLOTTE CONGER
3 and SARA B. STUART,
4 Plaintiffs-Appellees,
5 vs. No. 34,848
6 KATHLEEN JACOBSON,
7 Defendant-Appellant.
8 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
9 Raymond Z. Ortiz, District Judge
10 Charlotte Conger
11 Sara Stuart
12 Santa Fe, NM
13 Pro Se Appellees
14 Kathleen Jacobson
15 Santa Fe, NM
16 Pro Se Appellant
1 MEMORANDUM OPINION
2 HANISEE, Judge.
3 {1} Defendant-Appellant Kathleen Jacobsen (Appellant) appeals, in a self-
4 represented capacity, from the district court’s issuance of a permanent injunction in
5 favor of Plaintiffs-Appellees Charlotte Conger and Sara B. Stuart (Plaintiffs). [DS 1;
6 RP 52] This Court issued a notice proposing to affirm. Appellant has filed a
7 memorandum opposing this Court’s proposed disposition. Having given due
8 consideration to Appellant’s arguments in opposition, we affirm.
9 {2} First, Appellant contends that our proposed disposition is in error because we
10 relied upon false statements made on the record by Plaintiff Charlotte Conger before
11 the district court, which Appellant contends constitute perjury by Plaintiffs. [MIO
12 unnumbered 2-3] Claims of perjury, a criminal offense, are not properly before us,
13 particularly where such claims were not adequately raised and developed below. See
14 UJI 14-2501 NMRA (setting forth the essential elements to obtain a conviction for
15 perjury); Benz v. Town Ctr. Land, LLC, 2013-NMCA-111, ¶ 24, 314 P.3d 688 (“To
16 preserve an issue for review on appeal, it must appear that appellant fairly invoked a
17 ruling of the trial court on the same grounds argued in the appellate court.” (internal
18 quotation marks and citation omitted)). To the extent Appellant is raising a credibility
19 concern, this Court does not assess credibility. See Sanchez v. Molycorp, Inc., 1985-
2
1 NMCA-067, ¶ 21, 103 N.M. 148, 703 P.2d 925 (“[I]t is a matter for the trier of fact
2 to weigh the evidence, determine the credibility of witnesses, reconcile inconsistent
3 statements, and decide the true facts.”).
4 {3} In further support of her contention, Appellant specifically asserts that she did
5 not try to prevent the inspectors, the Plaintiffs, who were at her apartment, from
6 leaving the property. [MIO unnumbered 2] Appellant was entitled to present her
7 version of the facts to the district court, but as noted above, it was within the purview
8 of the district court to resolve any conflicts in the testimony. See Skeen v. Boyles,
9 2009-NMCA-080, ¶ 37, 146 N.M. 627, 213 P.3d 531 (stating that, when the district
10 court hears conflicting evidence, “we defer to its determinations of ultimate fact, given
11 that we lack opportunity to observe demeanor, and we cannot weigh the credibility of
12 live witnesses”). As discussed in our notice, substantial evidence was presented in
13 support of the district court’s determination. [CN 3-4] If substantial evidence exists
14 to support the district court’s grant of the permanent injunction, an appellate court will
15 not disturb that decision. See Insure N.M., LLC v. McGonigle, 2000-NMCA-018, ¶ 8,
16 128 N.M. 611, 995 P.2d 1053 (“If there is substantial evidence to support the trial
17 court’s decision, we will not disturb that decision on appeal.”).
18 {4} Finally, we turn to Appellant’s contention that she needs legal representation
19 in the current matter. [MIO unnumbered 2] “The sixth amendment right to counsel
3
1 guarantee applies only to criminal prosecutions.” State ex rel. Dep’t of Human
2 Services v. Rael, 1982-NMSC-042, ¶ 4, 97 N.M. 640, 642 P.2d 1099. In a civil
3 proceeding such as the present matter, Appellant was not entitled to the appointment
4 of counsel to represent her. Accordingly, we see no basis for error.
5 {5} For the reasons stated above and in this Court’s notice of proposed disposition,
6 we affirm the district court.
7 {6} IT IS SO ORDERED.
8 _____________________________
9 J. MILES HANISEE, Judge
10 WE CONCUR:
11 __________________________________
12 MICHAEL E. VIGIL, Chief Judge
13 __________________________________
14 JAMES J. WECHSLER, Judge
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