Fain v. Romero ( 2012 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 KATHY C. FAIN,
3 Plaintiff-Appellant,
4 v. No. 31,905
5 TERESA ROMERO,
6 Defendant-Appellee.
7 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
8 John W. Pope, District Judge
9 Kathy C. Fain
10 Los Lunas, NM
11 Pro Se Appellant
12 Law Offices of Bruce S. McDonald
13 Bruce S. McDonald
14 Albuquerque, NM
15 for Appellee
16 MEMORANDUM OPINION
17 VIGIL, Judge.
18 Plaintiff appeals from the denial of her motions for judgment notwithstanding
19 the verdict (jnov) and new trial. We proposed to affirm in a calendar notice. Plaintiff
1 has responded with a memorandum in opposition. We have carefully considered
2 Plaintiff’s arguments, but we find them unpersuasive. We affirm.
3 In her memorandum in opposition, Plaintiff continues to claim that it was error
4 for the district court to deny her renewed motion for jnov and her motion for a new
5 trial. Plaintiff first argues that the district judge erred in failing to consider the
6 “weight” of the evidence when ruling on her motions, and refers to oral comments by
7 the judge in support of her argument. [MIO 17-18] We point out that “[o]ral
8 statements of a judge in articulating his ruling at the close of trial do not constitute a
9 ‘decision’ . . . , and error may not be predicated thereon.” Balboa Constr. Co. v.
10 Golden, 97 N.M. 299, 304, 639 P.2d 586, 591 (Ct. App. 1981). In addition, there is
11 nothing to suggest that Plaintiff made this argument to the district court. See
12 Woolwine v. Furr’s, Inc., 106 N.M. 492, 496, 745 P.2d 717, 721 (Ct. App. 1987) (“To
13 preserve an issue for review on appeal, it must appear that appellant fairly invoked a
14 ruling of the trial court on the same grounds argued in the appellate court.”). Even if
15 Plaintiff properly preserved her argument, the district court did not err in denying
16 Plaintiff’s motions, as we discuss below.
17 Plaintiff claims that the district court and this Court failed to consider “very
18 crucial, undisputed facts.” [MIO 3] In particular, Plaintiff contends that Defendant
19 relied on a “sudden stop” defense, but negated her defense through her own testimony.
20 Plaintiff states that the district court, in deciding her motions, was required to
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1 determine that Defendant had a duty to Plaintiff to avoid the accident by keeping a
2 proper lookout, to determine whether Defendant breached that duty, and to determine
3 whether there were exceptions to the “sudden stop” defense that “did not excuse the
4 duty.” [MIO 3-4] According to Plaintiff, Defendant was aware that trucks in the area
5 of the accident make wide turns, Defendant had looked up to see Plaintiff braking, and
6 Defendant testified that she did not see the large tractor trailer in the adjacent lane
7 prior to the accident. [MIO 8-9] Plaintiff argues that this information should have
8 been given more weight and would have led to a different verdict.
9 We disagree with Plaintiff’s argument. The jury heard the testimony and was
10 given instructions on Plaintiff’s theories, including Plaintiff’s belief that Defendant
11 did not keep a proper lookout, and the jury concluded that Defendant was not liable.
12 [RP 261-81] The evidence was sufficient to support the jury’s verdict. Therefore,
13 based on the standards applicable to the motions filed by Plaintiff, the district court
14 did not err in denying Plaintiff’s motions. See Gonzales v. N.M. Dep’t of Health,
15 2000-NMSC-029, ¶ 18, 129 N.M. 586, 11 P.3d 550; Martinez v. Ponderosa Prods.,
16 Inc., 108 N.M. 385, 386, 772 P.2d 1308, 1309 (Ct. App. 1988); see also Rhein v. ADT
17 Auto., Inc., 1996-NMSC-066, ¶ 24, 122 N.M. 646, 930 P.2d 783 (stating that a district
18 court cannot disturb a jury verdict based on the court’s doubt about credibility; the
19 jury exclusively evaluates evidence and credibility, and a trial court only intervenes
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1 if the verdict is clearly and manifestly against the weight of the evidence such that
2 grave injustice would result).
3 Plaintiff continues to claim that statements made by certain jurors and
4 overheard by Plaintiff and her counsel demonstrated “bias in failing to decide the case
5 based on the evidence presented.” [MIO 15] As we explained in our calendar notice,
6 the affidavits could not be considered in deciding whether to grant a new trial. A new
7 trial cannot be granted based on affidavits and statements presented to the district
8 court after the jury returns a verdict. See Kilgore v. Fuji Heavy Indus. Ltd., 2010-
9 NMSC-040, ¶ 11, 148 N.M. 561, 240 P.3d 648. Otherwise, the jury’s deliberations
10 would be reviewable and the jury would not have the final authority over its verdict.
11 Shadoan v. Cities of Gold Casino, 2010-NMCA-002, ¶ 13, 147 N.M. 444, 224 P.3d
12 671.
13 Plaintiff seeks to amend her docketing statement to add a claim that the district
14 judge’s judgment was affected by his use of alcohol. [MIO 21] This Court will deny
15 motions to amend that raise issues that are not viable, even if they allege fundamental
16 or jurisdictional error. State v. Moore, 109 N.M. 119, 129, 782 P.2d 91, 101 (Ct. App.
17 1989), superceded by rule on other grounds as stated in State v. Salgado, 112 N.M.
18 537, 817 P.2d 730 (Ct. App. 1991).
19 Plaintiff refers to a newspaper article that indicated the district judge was
20 removed from the bench for violating his probation. Plaintiff alleges that the conduct
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1 of the judge may have affected his judgment and performance. [MIO 21] Plaintiff
2 does not provide information to show that the district judge was engaging in this
3 conduct during the trial in her case, or that the conduct of the district judge affected
4 the outcome of her trial in any way. We deny Plaintiff’s motion to amend her
5 docketing statement.
6 For the reasons discussed in this opinion and in our calendar notice, we affirm
7 the denial of Plaintiff’s motions.
8 IT IS SO ORDERED.
9 _______________________________
10 MICHAEL E. VIGIL, Judge
11 WE CONCUR:
12 _________________________________
13 CYNTHIA A. FRY, Judge
14 _________________________________
15 J. MILES HANISEE, Judge
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