Adenauer v. Conley's Landscaping

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 PETER ADENAUER,
3 Plaintiff-Appellant,
4 v. NO. 30,271
5 CONLEY’S LANDSCAPING, INC.,
6 a New Mexico Corporation.
7 Defendant-Appellee.
8 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
9 Karen L. Parsons, District Judge
10 Adam D. Rafkin, P.C.
11 Adam D. Rafkin
12 Ruidoso, NM
13 for Appellant
14 Bryant, Schneider-Cook Law Firm, P.A.
15 Angie Schneider-Cook
16 Ruidoso, NM
17 for Appellee
18 MEMORANDUM OPINION
19 GARCIA, Judge.
1 Plaintiff asks this Court to reverse the district court’s judgment dismissing
2 Plaintiff’s complaint and awarding Defendant unjust enrichment damages on
3 Defendant’s counterclaim. On appeal, Plaintiff raises eight issues that primarily
4 challenge the sufficiency of the evidence to support several of the district court’s
5 findings of fact regarding its award and calculation of damages owed to Defendant
6 based on unjust enrichment. Plaintiff also argues that the district court’s findings of
7 fact exhibit bias against Plaintiff. We affirm the district court’s judgment denying
8 Plaintiff’s claims and awarding Defendant damages for its counterclaim.
9 BACKGROUND
10 Plaintiff Peter Adenauer (Plaintiff) hired Defendant Conley’s Landscaping
11 (Defendant) to work on a landscaping project (the Project) involving the installation
12 of an irrigation system at Plaintiff’s ranch in Nogal, New Mexico. The parties entered
13 into an oral agreement for the Project whereby Plaintiff would pay Defendant
14 approximately $30,000 to provide and install an irrigation system, landscaping, and
15 related services. The parties never signed a written contract, but Defendant did
16 provide Plaintiff with an unsigned written landscape work order/invoice (the Work
17 Order) at some point after starting work on the Project. Throughout the course of the
18 Project, Plaintiff expanded the scope of the work that was originally set out in the
19 Work Order.
2
1 A disagreement arose between the parties after Defendant sent Plaintiff an email
2 itemizing the work that had been completed as of that particular date, and outlining
3 the additional charges for the additional work not set forth in the Work Order.
4 Plaintiff’s email response contained racially derogatory comments about Defendant’s
5 Hispanic employees that Defendant’s president (Conley) found highly offensive. As
6 a result, Defendant immediately terminated its business relationship with Plaintiff and
7 discontinued all work on the Project. Plaintiff then brought suit against Defendant for
8 breach of contract, fraud, and prima facie tort. In response, Defendant raised
9 numerous counterclaims and affirmative defenses, including a counterclaim for unjust
10 enrichment for the work completed by Defendant on the Project.
11 The district court heard testimony and received evidence from both parties. The
12 court then entered extensive findings of fact and conclusions of law. It explained that
13 credibility had a significant influence on its conclusions and that it found Defendant’s
14 testimony most credible. As an example of why it gave more weight to Defendant’s
15 testimony, the court indicated that it perceived that Plaintiff threatened Conley during
16 trial. Based on Defendant’s testimony, the district court concluded that Defendant had
17 not breached the terms of the agreement to work on the Project and found that
18 Defendant “did not unjustifiably ‘walk off’ or otherwise abandon the [P]roject”
19 because “Defendant was at a point of completion” at the time he discontinued work
3
1 on the Project. The district court also rejected the existence of a specific contract
2 outlining the scope of the Project, but explained that “[e]ven if there was a contract,
3 Defendant did not breach the same. Plaintiff was demeaning to Defendant’s staff and
4 [P]laintiff, his wife, and daughter made the working relationship impossible.” It then
5 entered a judgment in favor of Defendant for the amount of $11,628.61 with interest
6 at 8.75% accruing thirty days from July 4, 2004, the day following the email exchange
7 between the parties. Plaintiff filed a timely notice of appeal.
8 DISCUSSION
9 A. Standard of Review
10 “On appeal we will not disturb the [district] court’s factual findings unless the
11 findings are not supported by substantial evidence[,]” but we review conclusions of
12 law de novo. Strata Prod. Co. v. Mercury Exploration Co., 1996-NMSC-016, 121
13 N.M. 622, 627, 916 P.2d 822, 827. “The question [of whether a district court’s
14 findings are supported by substantial evidence] is not whether substantial evidence
15 exists to support the opposite result, but rather whether such evidence supports the
16 result reached.” Las Cruces Prof’l Fire Fighters v. City of Las Cruces, 1997-NMCA-
17 044, ¶ 12, 123 N.M. 329, 940 P.2d 177. As a result, we will resolve “all disputes of
18 facts in favor of the successful party and indulge[] all reasonable inferences in support
19 of the prevailing party.” Id. In addition, we review the ability of a district court to
4
1 exercise its equitable powers under a particular set of facts de novo, United Properties
2 Ltd. Co. v. Walgreen Properties, Inc., 2003-NMCA-140, ¶ 7, 134 N.M. 725, 82 P.3d
3 535, and we will reverse a district court’s exercise of its equitable powers only upon
4 a showing that the district court abused its discretion. Ontiveros Insulation Co. v.
5 Sanchez, 2000-NMCA-051, ¶ 9, 129 N.M. 200, 3 P.3d 695.
6 We also note that in Plaintiff’s briefs to this Court, he refers to some portions
7 of the record proper, some general citations to the district court proceedings, and
8 certain specific citations to the proceedings below, but fails to provide the required
9 citations to the record. It is well established that this Court will not search the record
10 to find support for Plaintiff’s contentions. See State v. Rojo, 1999-NMSC-001, ¶ 44,
11 126 N.M. 438, 971 P.2d 829 (pointing out that appellate court will not search the
12 record to find whether an issue was preserved); Ross v. City of Las Cruces, 2010-
13 NMCA-015, ¶ 18, 148 N.M. 81, 229 P.3d 1253 (“Where a party fails to cite any
14 portion of the record to support its factual allegations, the Court need not consider its
15 argument on appeal.”). Defendant’s brief provides more specific citations to the
16 record, and Plaintiff did not challenge these citations in his reply brief. Where
17 Plaintiff does not provide appropriate citations to the record but argues that
18 Defendant’s rendition of the facts is incorrect, we note that this Court indulges every
19 presumption in favor of the “correctness and regularity” of the district court’s decision
5
1 in favor of the prevailing party. Rojo, 1999-NMSC-001, ¶ 53 (internal quotation
2 marks and citation omitted).
3 B. Propriety of an Equitable Remedy
4 We begin by addressing Plaintiff’s argument that the district court erroneously
5 failed to address his requested findings of fact and conclusions of law relevant to the
6 privity of contract between the parties, and his argument that privity precluded the
7 district court from hearing Defendant’s claim for equitable relief. However, Plaintiff’s
8 assertion that the district court “appeared to neither adopt nor reject” his requested
9 findings of fact and conclusions of law related to the propriety of Defendant’s unjust
10 enrichment claim is not supported by the record. Instead, the record reflects that the
11 district court both addressed and rejected Plaintiff’s requested findings of fact and
12 conclusions of law related to the presence of privity between the parties and whether
13 privity precluded Defendant’s unjust enrichment claim.
14 In this case, there is no dispute that the parties entered into an oral agreement,
15 or that the agreement created some form of privity between the parties. However, the
16 fact that some form of privity existed between Defendant and Plaintiff does not, as
17 Plaintiff claims, foreclose Defendant’s claim for unjust enrichment. See Starko, Inc.
18 v. Presbyterian Health Plan, Inc., 2011-NMCA-___, ¶ 91, ___ N.M. ___, ___ P.3d
19 ___ (Nos. 27,992, 29,016, Dec. 15, 2011) (holding that a party may bring a claim for
6
1 unjust enrichment against a party with whom it has a contractual relationship);
2 Ontiveros, 2000-NMCA-051, ¶¶ 11, 13 (explaining that unjust enrichment damages
3 generally apply in the absence of privity but declining to “sanction an unconscionable
4 result merely because it may have been brought about by means which simulate
5 legality”) (internal quotation marks and citation omitted); see also Hydro Conduit
6 Corp. v. Kemble, 110 N.M. 173, 178, 793 P.2d 855, 860 (1990) (“[U]njust enrichment
7 constitutes an independent basis for recovery in a civil-law action, analytically and
8 historically distinct from the other two principal grounds for such liability, contract
9 and tort.”); Danley v. City of Alamogordo, 91 N.M. 520, 521, 577 P.2d 418, 419
10 (1978) (holding that a builder was free to pursue an unjust enrichment claim despite
11 the fact that it was in privity with the defendant). As a result, Plaintiff’s assertion that
12 unjust enrichment damages are not recoverable in the presence of privity is not
13 supported by the law of this jurisdiction, and the district court did not err in rejecting
14 Plaintiff’s preclusion argument.
15 Additionally, even if Plaintiff’s argument was legally adequate, it has no
16 relevance in the present appeal because the district court rejected the existence of a
17 definitive contract between the parties. Plaintiff has not challenged the district court’s
18 findings that no contract existed between the parties. As a result, we conclude that the
19 findings regarding privity and unjust enrichment are supported by substantial evidence
7
1 and binding on appeal. See Rule 12-213(A)(4) NMRA (“A contention that a verdict,
2 judgment or finding of fact is not supported by substantial evidence shall be deemed
3 waived unless the argument identifies with particularity the fact or facts that are not
4 supported by substantial evidence[.]”); Giovannini v. Turrietta, 76 N.M. 344, 347, 414
5 P.2d 855, 857 (1966) (“The [district] court’s findings, not properly attacked, are
6 conclusive on appeal.”). It follows that the district court did not err in rejecting
7 Plaintiff’s requested conclusions that the existence of privity precluded the district
8 court from hearing Defendant’s claim for unjust enrichment, and its decision to
9 exercise its equitable powers was not error. See Fox v. Doak, 78 N.M. 743, 746, 438
10 P.2d 153, 156 (1968) (concluding that it is not error for the district court to reject
11 requested findings of fact where the requested findings are inconsistent with findings
12 of the district court that are supported by substantial evidence).
13 C. Sufficiency of the Evidence Relating to Unjust Enrichment
14 We next address Plaintiff’s argument that the district court’s award of damages
15 to Defendant for unjust enrichment was an abuse of discretion because Plaintiff’s
16 enrichment was in fact justified and supported by substantial evidence. See Heimann
17 v. Kinder-Morgan CO2 Co., 2006-NMCA-127, ¶ 20, 140 N.M. 552, 144 P.3d 111
18 (allowing an aggrieved party to recover damages for unjust enrichment from a party
19 that has profited at the aggrieved party’s expense only when it would be unjust for the
8
1 party to retain the conferred benefit). Although Plaintiff’s argument is framed as a
2 challenge to the district court’s conclusion of law, Plaintiff’s argument that the district
3 court erroneously failed to address numerous requested findings of fact is, in reality,
4 an attack on the sufficiency of the evidence supporting the factual findings relevant
5 to Defendant’s unjust enrichment claim.
6 1. The Conduct of Both Parties in Terminating the Business Relationship
7 Plaintiff argues that the district court erred in rejecting his requested conclusion
8 of law that “[e]quity prevents a party from breaching a contract by terminating a
9 project, walking off the jobsite[,] and then recovering for quantum meruit. Plaintiff
10 repeatedly asserts that his enrichment was not unjust because Defendant improperly
11 walked off or abandoned the Project and, “[i]t would achieve a perverse result to allow
12 a party to enter into an agreement . . . and then to walk off a project (when the other
13 side was not in breach) and then to recover in quantum meruit.” However, Plaintiff
14 failed to specifically challenge the district court’s conclusion that Defendant did not
15 breach any contract or agreement with Plaintiff, attack any of its related findings,
16 provide record citations to support his assertion that Defendant’s conduct was
17 improper, or otherwise challenge or rebut Defendant’s recitation of the facts or
18 citations to the record. Plaintiff’s claim is also misleading. It implies that Plaintiff’s
19 conduct was innocent throughout the course of the Project and is noticeably silent as
9
1 to the district court’s actual finding that Plaintiff’s demeaning and offensive behavior
2 caused irreparable damage to the business relationship between the parties. As a
3 result, we resolve the factual conflict raised by Plaintiff’s unsupported factual
4 assertion in favor of the district court’s decision and Defendant. Rojo, 1999-NMSC-
5 001, ¶ 53.
6 Consistent with our rules of appellate procedure, we will not address the merits
7 of Plaintiff’s sufficiency of the evidence argument any further. See Rule 12-213; see
8 also Aspen Landscaping, Inc., v. Longford Homes of N.M., Inc., 2004-NMCA-063,
9 ¶¶ 28-29, 135 N.M. 607, 92 P.3d 53 (explaining that a party challenging a finding for
10 lack of substantial evidence must refer to “all of the evidence, both favorable and
11 unfavorable, followed by an explanation of why the unfavorable evidence does not
12 amount to substantial evidence, such as is necessary to inform both the appellee and
13 the Court of the true nature of the appellant’s arguments”). As a result, we conclude
14 that the district court’s findings and conclusions regarding the conduct of the parties
15 and its effect on the business relationship are supported by substantial evidence. See
16 Rule 12-213(A)(4); Nance v. Dabau, 78 N.M. 250, 252, 430 P.2d 747, 749 (1967)
17 (“Findings must be attacked on the basis that there is no substantial evidence to
18 support them. If not so attacked, the findings must be accepted as the facts in the
19 case.”) (citation omitted). Thus, Plaintiff’s requested conclusion of law was
10
1 inconsistent with the specific evidence set forth in the record, and the district court did
2 not err in rejecting Plaintiff’s position. See Hines v. Hines, 64 N.M. 377, 379, 328
3 P.2d 944, 946 (1958) (“As to the [district] court’s refusal of appellant’s requested
4 findings of fact, suffice it to say that the refused findings were diametrically opposed
5 to or inconsistent with the facts properly found by the [district] court in support of the
6 final decree and judgment. Therefore, the refusal was not error.”).
7 2. Authorization to Charge Plaintiff’s Credit Card
8 Plaintiff also argues that Defendant’s hands were unclean and allowing Plaintiff
9 to retain the benefit of Defendant’s services would not be unjust. Plaintiff supports
10 this argument, once again without citation to the record, by asserting that there was
11 “no basis (other than an assumption)” for the district court’s finding that Plaintiff’s
12 wife had the authority to authorize charges to Plaintiff’s credit card, and that
13 Defendant admitted the same. Again, this argument ignores the evidence favorable
14 to the district court’s finding of fact that is supported by the record. See Muse v.
15 Muse, 2009-NMCA-003, ¶ 72, 145 N.M. 451, 200 P.3d 104.
16 Additionally, though Plaintiff styles his argument as an attack on the sufficiency
17 of the evidence, we note that he is really asking this Court to re-weigh the evidence.
18 Specifically, Plaintiff argues that the district court should have given additional weight
19 to evidence pertaining to the date of the credit-card receipt and the date Defendant
11
1 asserted he received authorization from Plaintiff’s wife. But the duty to weigh the
2 credibility of witnesses and to resolve conflicts in the evidence is for the district court,
3 and this Court will not re-weigh the evidence or substitute our judgment for the trier
4 of fact on appeal. Landavazo v. Sanchez, 111 N.M. 137, 138, 802 P.2d 1283, 1284
5 (1990); Dibble v. Garcia, 98 N.M. 21, 644 P.2d 535 (Ct. App. 1982). As a result,
6 Plaintiff is bound by the district court’s finding. See Maloof v. San Juan Cnty.
7 Valuation Protests Bd., 114 N.M. 755, 759-60, 845 P.2d 849, 853-54 (Ct. App. 1992)
8 (stating that an appellant is bound by the findings of fact made below unless the
9 appellant properly attacks the findings, and the appellant remains bound if he or she
10 fails to properly set forth all the evidence bearing upon the findings).
11 Moreover, even if this finding was not supported by substantial evidence, we
12 need not address the merits of Plaintiff’s claim further. The charge at issue was
13 refunded to Plaintiff’s credit card. In light of this refund and the lack of any findings
14 by the district court regarding this refund issue, we shall not re-weigh the evidence
15 and speculate regarding the district court’s decision to reject Plaintiff’s unclean hands
16 argument. See Benavidez v. Benavidez, 2006-NMCA-138, ¶ 23, 140 N.M. 637, 145
17 P.3d 117 (refusing to address challenges to a district court’s findings as unclear when
18 the challenges are not supported by relevant and specific reasons and do not explain
19 why the evidence relating to the finding is insufficient); Clayton v. Trotter, 110 N.M.
12
 1 369, 373, 796 P.2d 262, 266 (Ct. App. 1990) (explaining that an appellate court need
2 not consider unclear arguments).
3 3. Satisfactory Installation of the Pump
4 Plaintiff also asserts that substantial evidence did not support the district court’s
5 finding regarding the performance of the pump installed by Defendant. In support of
6 his argument, Plaintiff references the testimony from Plaintiff’s expert, who was also
7 hired to replace Defendant for the irrigation project. Plaintiff’s expert testified that
8 according to his calculations, the pump provided by Defendant would not perform
9 properly at the elevation in which it was installed. But, Plaintiff’s expert also testified
10 that he never examined or tested the pump installed by Defendant, and that he was
11 relying on Plaintiff’s explanation regarding the scope of the work Defendant was
12 asked to perform on the Project. As a result, the district court found that, while
13 generally credible, Plaintiff’s expert “was misinformed and had an interest in
14 marketing the more expensive pump.” Plaintiff has not addressed or otherwise
15 challenged this finding, and this Court will not second-guess the district court’s
16 judgment as to the credibility of this expert witness. Mares v. Valencia Cnty. Sheriff’s
17 Dep’t, 106 N.M. 744, 747, 749 P.2d 1123, 1126 (Ct. App. 1988). Plaintiff also does
18 not address or otherwise rebut the district court’s findings that Plaintiff never
19 attempted to use or test the pump installed by Defendant, and that Plaintiff, after
13
1 discussing the different pump options with Defendant, made an informed decision
2 regarding the pump purchased by Defendant. As a result, these findings are
3 conclusive. Nance, 78 N.M. at 252, 430 P.2d at 749. Plaintiff’s attack on these
4 findings is simply an argument that the district court’s findings were wrong while
5 those findings proposed by Plaintiff were correct. See Lahr v. Lahr, 82 N.M. 223,
6 224, 478 P.2d 551, 552 (1970) (“We presume the correctness of the judgment of the
7 [district] court who had the advantage of evaluating the demeanor of the parties and
8 of the witnesses.”). Again, Plaintiff failed to refer to any of the evidence unfavorable
9 to his position or to explain why the evidence was not sufficient to support
10 Defendant’s position. See Aspen Landscaping, 2004-NMCA-063, ¶ 29 (“Failure to
11 provide citations and challenge findings affect this Court’s ability to decide the issues.
12 Clearly, counsel for all litigants are more effective advocates when they observe the
13 Rules of Appellate Procedure.”); State v. Clifford, 117 N.M. 508, 513, 873 P.2d 254,
14 259 (1994) (“Mere reference in a conclusory statement will not suffice and is in
15 violation of our rules of appellate procedure.”). As a result, we will not further
16 address the merits of Plaintiff’s claim and accept the district court’s finding as
17 conclusive and supported by substantial evidence.
18 D. Calculation of Damages
19 Plaintiff also argues that the district court’s award of damages was an abuse of
14
1 discretion. Plaintiff argues that the district court’s calculation of damages was
2 incorrect and that the cost of Defendant’s material and labor and the benefit conferred
3 on Plaintiff were not supported by substantial evidence. On appeal, this Court will
4 uphold “[a] damage award which is reasonably certain, supported by substantial
5 evidence, and not based on speculation[.]” Ranchers Exploration & Dev. Corp. v.
6 Miles, 102 N.M. 387, 390, 696 P.2d 475, 478 (1985). The crux of Plaintiff’s
7 argument is that instead of calculating damages for restitution as required by a claim
8 in equity, the district court used the original work order to measure damages based
9 upon a legal position arising through a breach of contract. This argument is not
10 supported by the record.
11 The record reflects that the original contract price articulated in the Work Order
12 was $35,454.55. The district court did not measure damages based on that amount.
13 Instead, the district court determined the value of the benefit conferred by Defendant
14 to Plaintiff at the time the relationship terminated and subtracted payments that
15 Defendant had already received from that amount. In doing so, the district court only
16 awarded Defendant damages for the value of the services conferred upon Plaintiff.
17 It did not award Defendant damages based on the amount Defendant would have
18 received under any contractual relationship with Plaintiff. As a result, we conclude
19 that the district court properly calculated damages based on the principles equitable
15
1 restitution. See Ledbetter v. Webb, 103 N.M. 597, 600, 711 P.2d 874, 877 (1985)
2 (stating that restitution is an equitable remedy designed to restore the status quo ante).
3 Additionally, our review of the record establishes that the district court’s
4 finding that Plaintiff owed Defendant the sum of $11,628.61 for labor and materials
5 at the time the parties terminated their business relationship was supported by
6 substantial evidence. Plaintiff has not provided this Court with any reason to conclude
7 otherwise, and we are not persuaded by Plaintiff’s broad assertion that the district
8 court erroneously failed to address his requested “[f]indings of [f]act Nos. 3, 4, [and
9 conclusions of law] Nos. 8, 11, 12, 18, 20, 22, 23, 24” related to Defendant’s failure
10 to establish the reasonable value of his services. Again, Plaintiff fails to argue or
11 address the alleged errors with any specificity, and his argument is too general and
12 vague for this Court’s consideration. See Muse, 2009-NMCA-003, ¶ 72 (“We will not
13 search the record for facts, arguments, and rulings in order to support generalized
14 arguments.”); In re Estate of Heeter, 113 N.M. 691, 694, 831 P.2d 990, 993 (Ct. App.
15 1992) (This [C]ourt will not search the record to find evidence to support an
16 appellant’s claims.); Phoenix, Inc. v. Galio, 100 N.M. 752, 754, 676 P.2d 829, 831
17 (Ct. App. 1984) (“[A]n indirect and general attack is not sufficient for [this] [C]ourt’s
18 consideration on appeal.”).
19 Nothing in Plaintiff’s brief indicates that there was any testimony that would
16
1 have required the district court to accept its requested findings related to Defendant’s
2 failure to establish damages. Again, Plaintiff did not attack with specificity any of the
3 district court findings relating to the reasonable value of Defendant’s services. See
4 Blea v. Fields, 2005-NMSC-029, ¶ 22, 138 N.M. 348, 120 P.3d 430 (“Because
5 Plaintiff did not properly attack specific findings with particularity, the findings will
6 be deemed conclusive.”). As a result, we conclude that the district court’s rejection
7 of Plaintiff’s inconsistent requested findings of fact and conclusions of law was not
8 error, Fox, 78 N.M. at 746, 438 P.2d at 156, and that the award of damages to
9 Defendant in the amount of $11,628.61 is supported by substantial evidence.
10 E. Award of Prejudgment Interest
11 Plaintiff also challenges the sufficiency of the evidence to support the district
12 court’s award of prejudgment interest under NMSA 1978, Section 56-8-4(B). He
13 argues that there was no proof offered at trial, nor were there any findings, that
14 Plaintiff failed to make a reasonable and timely offer of settlement or that Plaintiff
15 was the cause of delay in bringing this matter to trial. However, Plaintiff argued to
16 the district court that prejudgment interest was inappropriate under NMSA 1978,
17 Section 56-8-3 (1980), and has not provided this Court with any citation to the record
18 indicating that Plaintiff requested the aforementioned findings under Section 56-8-
19 4(B). Plaintiff thereby waived any findings of fact on these issues and is not entitled
17
1 to a review of the sufficiency of the evidence regarding new issues raised for the first
2 time on appeal. DeLisle v. Avallone, 117 N.M. 602, 609, 874 P.2d 1266, 1273 (Ct.
3 Ohio App. 1994); Pedigo v. Valley Mobile Homes, Inc., 97 N.M. 795, 798, 643 P.2d 1247,
4 1250 (Ct. App. 1982).
5 Moreover, Section 56-8-4(B) specifically allows the district court to exercise
6 its discretion in awarding prejudgment interest for the reasons mentioned by Plaintiff,
7 “among other things.” This Court will not overturn a district court’s decision to award
8 prejudgment interest absent an abuse of discretion. DeLisle, 117 N.M. at 609, 874
9 P.2d at 1273. “For a finding of abuse of discretion, an appellant bears the burden of
10 proving that the district court’s decision is contrary to all logic and reason.” Id.
11 Plaintiff has not met that burden. Therefore, we affirm the award of prejudgment
12 interest.
13 F. Bias Against Plaintiff
14 In its findings of fact and conclusions of law, the district court found Defendant
15 more credible than Plaintiff. It explained, “[a]t one point in the trial, . . . Plaintiff
16 actually threatened Mr. Conley.” Plaintiff asserts that this finding was not supported
17 by substantial evidence and, as a result, exhibits the district court’s bias against
18 Plaintiff. However, this argument goes directly to the district court’s determination
19 of witness credibility. See Santa Fe Pac. Gold Corp. v. United Nuclear Corp., 2007-
18
1 NMCA-133, ¶ 33, 143 N.M. 215, 175 P.3d 309 (holding that questions of credibility
2 are reserved for the district court as fact finder).
3 Additionally, with regard to Plaintiff’s claim that the district court was biased
4 and no threat was actually made, Defendant points this Court to a statement made by
5 Plaintiff during cross-examination. After being shown an aerial view photograph of
6 his ranch taken by Conley, Plaintiff said that low flying planes frighten his horses and
7 that Conley “might get shot down” if he took photographs of Plaintiff’s land from his
8 airplane again. In light of our deferential standard of review and the specific evidence
9 cited by Defendant in support of the district court’s finding, we conclude that the
10 record supports the district court’s credibility determination and the perceived threat
11 made by Plaintiff during cross examination. As a result, Plaintiff has failed to
12 establish that the district court exhibited bias against Plaintiff.
13 CONCLUSION
14 For the reasons discussed in this Opinion, we affirm the judgment entered by
15 the district court.
16 IT IS SO ORDERED.
17 _______________________________
18 TIMOTHY L. GARCIA, Judge
19
1 WE CONCUR:
2 _________________________________
3 RODERICK T. KENNEDY, Judge
4 _________________________________
5 MICHAEL E. VIGIL, Judge
20