This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions.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. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 THOMAS SWERTFEGER, 2 Plaintiff-Appellee, 3

v. NO. 32,986 4 DONALD RISSLING, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 7 Sheri Raphaelson, District Judge 8 P. Reid Griffith 9 Los Alamos, NM 10 for Appellee 11 Donald Rissling 12 Los Alamos, NM 13 Pro Se Appellant 14 MEMORANDUM OPINION 15 GARCIA, Judge. 162 {1} Defendant appeals from anadverse judgment in this dispute over the 1 termination of a lease agreement. We issued a second calendar notice proposing to 2 affirm, following which Defendant’s counselmoved to withdraw and was granted 3 permission to do so. Defendant then file d a pro se memorandum in opposition. We 4 have carefully consideredthe arguments Defendant makes in his memorandum. 5 However, we are not persuaded by those arguments, and affirm. 6 {2} Defendant makes a number of arguments in his memorandum in opposition. 7 Some of these arguments concern the same issues that were raised in the docketing 8 statement and addressed in our prior cale ndar notices, but some raise entirely new 9 issues. In order to have th is Court consider an issue that was not included in the 10 docketing statement, a party must file a motion to amend the docketing statement. We 11 will then determine whether the issue was preserved below, whether the motion states 12 all facts that are necessary for consideration of the issue, and whether the issue 13 appears to be viable; if any one of thes e requirements is not met, we will deny the 14 motion to amend. See State v. Rael, 1983-NMCA-081, ¶¶ 15, 16, 100 N.M. 193, 668 15 P.2d 309. 16 {3} Although Defendant has not filed a motion to amend the docketing statement, 17 we will construe his additi on of new issues in his memorandum in opposition as such 18 a motion and will decide whether to grant that motion as to each issue

. Defendant first 193 argues that the district court trial was terminated early, and he was denied the ability 1 to present his entire defense. He does not specify what evidence he was unable to 2 present, or what argument he was unable tomake through his attorney. He also does 3 not say whether he or his attorney objected tothe termination of the trial, and he does 4 not provide an understandable reason why the trial ended; he states only that the 5 plaintiff’s attorney “rushed the bench s houting Unauthorized Work” and that this 6 somehow caused the trial to be immediately halted. [MIO 1] From this description of 7 the events, we are unable to discern the reason for the district court’s actions, whether 8 those actions might have been legally erroneous, and whether Defendant adequately 9 objected to those actions and thus preserve d the issue for appeal. We therefore deny 10 the implied motion to amend the docketing st atement to raise this issue and will not 11 consider it further. See Rael , 1983-NMCA-081, ¶ 15. 12 {4} The next “new” issue Defendant attempts to raise is an argument that Plaintiff 13 fabricated his claim of moisture damage to the front door. This issue is a 14 straightforward matter of credibility of the witnesses; Plaintiff maintained that 15 Defendant caused this damage , and Defendant apparently maintained that no such 16 damage existed and, if it did, Defendant did not caus e it. On appeal, however, we 17 cannot re-weigh testimony or evidence presented by the parties below. See Weidler 18 v. Big J Enters., Inc. , 1998-NMCA-021, ¶ 30, 124 N.M . 591, 953 P.2d 1089. This is 194 because we were not at the trial and di d not have an opportunity to observe the 1 demeanor of the witnesses and hear their testimony. Unfortunately for Defendant, the 2 district court gave more credit to Plaintiff’s version of the events than to Defendant’s. 3 We must accept that credibility determination on appeal, and this issue is therefore not 4 viable. We deny Defendant’s implied moti on to amend his docketing statement as to 5 this issue. See Rael , 1983-NMCA-081, ¶¶ 7, 15. 6 {5} Defendant also raises for the first time issues concerning the district court’s 7 treatment of certain exhibits, as well as allegedly deceptive conduct by Plaintiff’s 8 attorney. [MIO 6] Defendant complains that the district court accepted as exhibits 9 certain photographs that were not dated, and ignored Defendant’s e-mail evidence. 10 This argument, like the argument that Pl aintiff’s attorney was being deceptive, 11 concerns the district court’s assessment of the evidence below and the court’s 12 assignment of varying amounts of weight to that evidence. As we noted above, 13 however, we are not allowed to re-weigh the evidence and to then reject the district 14 court’s assessment of the strengths or weaknesses of that evidence. See Weidler , 1998- 15 NMCA,021, ¶ 30. Instead, we must view th e evidence in the light most favorable to 16 the district court’s decision. See id. Therefore, these issues also are not viable, and we 17 deny the implied motion to amend the docketi ng statement to add these issues to the 18 appeal. See Rael , 1983-NMCA-081, ¶ 15. 195 {6} Defendant requests another opportunity to try the case below, representing 1 himself. He argues that if this request is granted, he can show inconsistencies in 2 Plaintiff’s case and submit evidence that wa s omitted due to the early termination of 3 the trial. [MIO 4-7] However, this type of second b ite at the apple is not allowed 4 simply because Defendant now regrets his previous choice to be represented by an 5 attorney and wishes to represent himself. See, e.g. , Capco Acquisub, Inc. v. Greka 6 Energy Corp. , 2007-NMCA-011, ¶ 28, 140 N.M. 920, 149 P.3d 1017 (holding that 7 in a civil case a party is generally bound by the actions of his attorney, even when 8 those actions deprive the party of a right to appeal). To obtain a retrial, Defendant 9 must first demonstrate that legal error occurre d in the first trial. As we have discussed 10 in our calendar notices and as we discuss below, such legal error has not been proven. 11 Thus, we deny Defendant’s implied motion to amend the docketi ng statement to add 12 this entitlement-to-new-trial issue, as it is not viable. See Rael , 1983-NMCA-081, 13 ¶¶ 1, 15. 14 {7} The final “new” issue Defendant seeks to raise is an argument that this Court 15 should limit the total damages award, in cluding attorney fees, to $10,000. This 16 argument is premature, as th e district court had not yet awarded any amount of fees 17 at the time this appeal was taken, and we therefore do not have a fees order to review. 18 This Court has no authority to preempt a di strict court’s determination of a question 196 that is still before that court. See OS Farms, Inc. v. N. M. American Water Co., Inc. , 1 2009-NMCA-113, ¶ 39, 147 N.M. 221, 218 P.3d 1269 (refusing to consider issue that 2 was premature). Again, we deny the implie d motion to amend the docketing statement 3 as to this issue. See Rael , 1983-NMCA-081, ¶ 15. 4 {8} We now consider Defendant’s arguments as to the issues that were raised in the 5 docketing statement and discussed in our calendar notices. The first of these issues 6 discussed by Defendant is the “Pony Wall” issue. Defe ndant contests Plaintiff’s 7 version of the events; Plaintiff apparentlycontended the work was unauthorized, while 8 Defendant argues there was verbal, non-written consent to have the work done. 9 Defendant points to evidence supporting his version—in addition to other arguments, 10 he says all other projects in the house were done pursuan t to verbal consent from 11 Plaintiff, that Plaintiff was in the house se veral times and did not say a word about the 12 alleged damage, and that the intent of the parties was that Plaintiff would finish the 13 project. [MIO 2] As we pointed out above, however, on appeal we are required to 14 disregard evidence that is contradictory to the district court’s decision. See Weidler, 15 1998-NMCA-021, ¶ 30. Even if we might havereached a different result if we had 16 been present at the trial, we cannot disturb credibility determinations and evidence17 weighing decisions made by the district court, who presided over the proceedings and 18 thus saw the evidence and testimony first-hand. See id. Plaintiff testified to the 197 existence of damage caused by Defendant, and on appeal we must accept that 1 testimony as true because the district court accepted it as true. See id. We note that 2 Defendant also refers to evidence that hehas collected after the trial occurred; he 3 argues that the Wall remains in the same c ondition it was in at the time of trial, from 4 which he deduces that Plaintiff’s damage claim was a fabrication. [MIO 3] However, 5 as an appellate court we cannot consider any evidence thatwas not before the district 6 court at the time that court made its decision. See State v. Owelicio , 2011-NMCA-091, 7 ¶ 12, 150 N.M. 528, 263 P.3d 305. Based on our limited standard of review, we affirm 8 the district court’s award of damages for this aspect of Plaintiff’s case. 9 {9} Defendant continues to argue that the di strict court erred in refusing to accept 10 his position regarding the condition of the premises. He now states that he presented 11 this evidence not to show the quality or condition of existing fixtures, but to prove that 12 Plaintiff was not performing his obligations under the lease. He adds that he was 13 unable to explain these issues due to the ac tions of Plaintiff’s attorney, which caused 14 the premature end of the trial. [MIO 4] Whatever Defendant’s purpose may have been 15 in presenting his evidence, the district court did not accept his version of the facts. 16 This is another instance of the distri ct court hearing conflicting testimony and 17 reviewing conflicting evidence, and making a decision as to which party’s position 18 was supported by the evidence. Once again, on appeal we cannot re-weigh the 198 evidence or decide to believe Defendant’s version of events rather than Plaintiff’s. See 1 Weidler , 1998-NMCA-021, ¶ 30. Based on our discussion in the second calendar 2 notice, we affirm on this issue as well. 3 {10} Defendant’s final argument concerns Plai ntiff’s allegedly wrongful entries into 4 the premises, in violation of the partie s’ lease agreement. Defendant argues that 5 Plaintiff’s explanation at trial about an emergency caused by moisture damage was a 6 fabrication. As we have e xplained throughout this opinion, however, this is a witness7 credibility determination that we may not disturb on appeal. See Weidler , 1998- 8 NMCA-021, ¶ 34. The same is true of th e remainder of the wrongful-entry argument. 9 Defendant presented evidence at trial that w ould have allowed the district court to find 10 that Plaintiff made wrongful entries into the residence; Plaintiff presented contrary 11 evidence. Since the district court accepted Pl aintiff’s version of the events, we are 12 bound by that version on appeal. We therefore affirm on this issue as well, for the 13 reasons stated herein and in the second calendar notice. 14 {11} Based on the foregoing discussion, we rej ect Defendant’s efforts to raise new 15 issues at this stage of the appeal, by denying in all respects his implied motion to 16 amend the docketing statement. Also, base d on the same discussion as well as the 17 analysis contained in the second calendar noti ce, we affirm the district court’s decision 18 in this case. 199 {12} IT IS SO ORDERED. 1

2 TIMOTHY L. GARCIA, Judge 3 WE CONCUR: 4

5 RODERICK T. KENNEDY, Chief Judge 6

7 JONATHAN B. SUTIN, Judge 8