Webster v. Serna

• Decision Date: 29 February 2016
• Docket Number: C/w 34,755,No. 34,535,34,535
• Parties: MARGETTE WEBSTER and DAVID WEBSTER Plaintiffs-Appellees, v. EMMA SERNA, d/b/a SERNA & ASSOCIATES CONSTRUCTION CO., L.L.C. a/k/a/ SERNA & ASSOCIATES, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

MARGETTE WEBSTER and DAVID WEBSTER Plaintiffs-Appellees, v. EMMA SERNA, d/b/a SERNA & ASSOCIATES CONSTRUCTION CO.,L.L.C. a/k/a/ SERNA & ASSOCIATES, Defendant-Appellant.

No. 34,535

C/w 34,755

COURT OF APPEALS OF THE STATE OF NEW MEXICO

February 29, 2016

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Beatrice J. Brickhouse, District Judge

Alex Chisholm

Albuquerque, NM

for Appellees

Emma Serna

Albuquerque, NM

Pro Se Appellant

MEMORANDUM OPINION

ZAMORA, Judge.

{1} Emma Serna d/b/a Serna & Associates Construction Co., L.L.C., a/k/a Serna & Associates (Appellant) attempts to appeal from various district court orders. Both this Court's first and second calendar notices proposed to affirm the district court. Appellant filed a memorandum in opposition to the second notice of proposed disposition as well as a letter and numerous pleadings in the form of requests and motions. We remain unpersuaded and affirm the district court.

{2} We note that Appellant filed a notice of appeal from the district court's judgment adopting the arbitration award that was docketed under Court of Appeals Case No. 34,755. Because that appeal involves the same underlying action appealed from in this case, we consolidate the appeals by an accompanying order.

{3} Initially, we address the numerous pleadings filed by Appellant with this Court. First, we do not consider Appellant's letter or "Answer to Appellee's Memorandum in Support of Summary Affirmance" because they do not conform with our Rules of Appellate Procedure regarding a proper response to a calendar notice. Rule 12-210(D)(3) NMRA provides for the filing of a memorandum in opposition "setting forth reasons why the proposed disposition should or should not be made and why the case should or should not be assigned to the summary calendar." We do not construe Appellant's letter and answer as conforming to this rule and limit our consideration to the assertions contained in the informal memorandum in opposition.

{4} Appellant also filed numerous pleadings entitled as requests and motions, which we deny. Appellant filed a motion for the recusal of the calendaring judge assertingbias on the basis that her refusals to perform Appellant's requests exhibit her bias and prejudice against Appellant. Appellant essentially alleges that the calendaring judge ruled contrary to her interest, which does not constitute bias. See Albuquerque Bernalillo Cty. Water Util. Auth. v. N.M. Pub. Reg. Comm'n, 2010-NMSC-013, ¶ 42, 148 N.M. 21, 229 P.3d 494 (indicating that it is well settled that "adverse rulings do not constitute bias"); State v. Hernandez, 1993-NMSC-007, ¶ 44, 115 N.M. 6, 846 P.2d 312 ("Personal bias cannot be inferred from an adverse ruling[.]"); United Nuclear Corp. v. Gen. Atomic Co., 1980-NMSC-094, ¶ 425, 96 N.M. 155, 629 P.2d 231 ("Rulings adverse to a party do not necessarily evince a personal bias or prejudice on the part of the judge against it even if the rulings are later found to have been legally incorrect.").

{5} Appellant also filed the following pleadings: (1) "Motion for Writ of Errors and Issues of Fraud by Arbitrators Vacate Award"; (2) "Evidence of the Voluntarily Accepting Something of Value that Influenced the Performance of the Officers of the Court," where she alleges that both the judge below and opposing counsel paid off their mortgages and need to be investigated for their corruption; (3) "Request for the Court to Overrule Both Arbitrations and Rule by the Enforced Contract," wherein she repeats the facts and procedural history leading up to the order to arbitrate and subsequent orders entered below; and (4) "Motion to Introduce the FollowingEvidence," in which she makes allegations that she contends are proof of the corruption by the judge and opposing counsel below.

{6} We deny Appellant's requests and motions. The motions fail to comply with Rule 12-309(C) NMRA, which requires the moving party to recite whether any other party opposes the motion or why the other party's position was not obtained. See Newsome v. Farer, 1985-NMSC-096, ¶ 18, 103 N.M. 415, 708 P.2d 327 ("Although pro se pleadings are viewed with tolerance, a pro se litigant, having chosen to represent himself [or herself], is held to the same standard of conduct and compliance with court rules, procedures, and orders as are members of the bar." (internal citation omitted)). In addition, they assert the same arguments Appellant continues to repeat concerning her claims of error by the district court below in acting without jurisdiction and this Court's failure to prohibit the arbitration from occurring and to investigate the alleged fraud by opposing counsel, the two arbitrators, and the presiding judge below. These arguments were addressed in the first and second calendar notices, to which Appellant had an opportunity to respond in her memorandum in opposition. For the reasons above, we deny all of Appellant's requests and motions.

{7} Appellant's memorandum in opposition repeats the same arguments asserted below and throughout the pendency of the appeal. Appellant continues to challenge the district court judge's actions below based on bias, prejudice and impropriety, butdoes not point to any specific legal errors supported by authority. This Court's first and second notices of proposed disposition explain that while Appellant continuously asserts she was aggrieved below, the...