September 28, 2011 • Volume 50, No. 38 - State Bar of New · PDF file · 2017-09-06Bar Bulletin - September 28, 2011 - Volume 50, No. 38 1 Special Insert: CLE ... Marc Sommers,

Bar Bulletin - September 28, 2011 - Volume 50, No. 38 1

Special Insert:CLE At-a-Glance

State Fair, by John Rose (see page 3)

www.nmbar.org

Inside This Issue

September 28, 2011 • Volume 50, No. 38

Table of Contents ................................................3

NM Supreme Court: Committee/Board Vacancies ...........................4

Court of Appeals: Investiture of J. Miles Hanisee ........................4

New Committee Forming: Committee on the Judiciary . ..........................5

Young Lawyers Division: 2011 Election Notice and Nomination Petition ...................................5, 8

Board of Bar Commissioners: 2011 Election Notice ......................................6

New Mexico Courts E-Filing Update, by Chief Justice Charles W. Daniels ................7

Board Governing the Recording of Judicial Proceedings: Expired Court Monitor Certifications ...................................................7

Rules/Orders

Proposed Amendments to Uniform Jury Instructions—Civil .......................................16

From the New Mexico Supreme Court

2011-NMSC-036, No. 32,344: Provencio v. Wenrich.....................................19

2011-NMSC-037, No. 32,486/32,489: City of Rio Rancho v. Amrep Southwest, Inc. ..................................24

From the New Mexico Court of Appeals

2011-NMCA-087, No. 29,143: State v. Coleman ...........................................31

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2 Bar Bulletin - September 28, 2011 - Volume 50, No. 38

Dennis Alaniz, Dr. Virginia Alaniz and Family, Eric Alaniz, Eva Alaniz and Family, Joey Alaniz, Jason Alarid, Linda Alaniz and John Harrison, Maria Onsurez Alaniz, Valerie Alaniz, Bruce Albertine, Jeff Albright, Erika Anderson, Angela Aranda, William Armijo, Sandy Aronow, Ahmad Assed, Tyler Atkinson, Peter Auh, Shawn Avery, Phillip & Adella Avila, Shoshana Avrishon, Dwayne Ayer, Frank Baca-Sandoval, Theresa Baca-Sandoval, Ann Badway, Jennifer Benavidez, Carlos A. Beraun, Liz Beraun, B. Lee Black, Lindsey Bowman, Peter Boyles, Dawn Branch, Sam Bregman, Liz and Joe Brown, Lucas Burnley, Jason Burns, Sherri Burr, Iris Calderon, Karla Calderon, Oscar Calderon, Sylvia Calderon, CD Carter, Kathleen Carter, Monique Casias, Juan Cervantes, Roxanna Chacon, Devin Chapman, Alexandria B. Chavez, Demetrio Chavez, Leigh Anne Chavez, Morris J. Chavez, Vanessa Chavez, Martha Chicoski, Thomas J. Clear III, Colleen Clear-McClure, Drew Cloutier, Joe Conte, Camile Cordova, Ken Cornell, Gary Vern Crosley, Tina Cruz, Mark A. Culkin, Susan Cutler, John D’Amato, Kendrick Dane, Jacob Davalos, Deborah Davis, Michael Day, Henry de la Garza, Diego Deanne, Diane Dal Santo, Robert Desiderio, Donna Diller, Eliseo and Tommie DoPorto, Erin Duddy, Jimmy E. Duran, Nora L. Duran, James H. Eaton, Ashlee Ek, Audrey Ek, Joey Emore, T. Calder Ezzel, Hank Farrah, Dillon Felt, Shannon Figueroa, Bruce Fox, Michael Fricke, Melanie Fritzsche, Nancy Fuentes, Eric and Anita Gallagher, Oscar Galcamez, Adriene Gallegos, Erik Gallegos, Marilyn Gallegos, Teri Garcia, Terri Garcia, Douglas Gardner, Sharon Gentry, Ronald Gentry, Herminia Godina, David Gonzales, Denise Gonzales, Jasmin Gonzales, Luz Elva Gonzales, Shawna Graham, Shirley P. Gray, Gary Dale Gregory, Nancy Griego, Julian Gutierrez, Raymond Hamilton, Dana Hanisee, Crystal Hartman, Lilian Hefter, Sharon Hernandez, Cynthia Herrera, Mary Herrera, Bryan Hess, Jonathan Ibarra, Ryan Jameson, Crucita Jaramillo, Danny Jarrett, Samantha Jarrett, Manuel M. Johnson, Rebecca Johnson, Mindi Kaiser, Linda Kawalee, Mark Keller, Paul Kennedy, Ian King, Ian Fitzgerald King, Lee King II, Natasha Koteen, Keya Koul, Heather LaFont, Jeffrey S. Landers, Josh Lanier, Damian R. Lara, Robert Lara, Jackie Ledon, Jeff Leidner, Gilbert Leiva, Ann Lesley, Vashti A. Lowe, Marvin Lozano, Melissa Lucero, Robert Lucero, Elaine Lujan, Doug Lunsford, Jason Lynch, Julie and Liz Madrid, Stella Madrid, Georgianne Maestas, Lito Marques, Gloria Martinez, Henry F. Martinez Jr., Loraine M. Martinez, Robert Martinez, Vince Martinez, Cathy Massey, Heather L. Maule, John McBride, Mario Medrano, Paul Melendres, Chris Melendrez, Deanna Miglio, John V. Milewski, Anita Miller, Gino Montoya, J. Brent Moore, Clara Moran, Clara Moran, Richard Moran, Richard Moran, Jacqueline Moreno, Renee Morris, Regina Moss, Margo Murray, Donna Navarro, Jaime Navarro, Michael Neill, Amelia P. Nelson, Jeanette Noel, Carlos Obrey-Espinoza, Jacob Olsen, One Shot Realty, Mike Orchowski, Briana Ortiz, Carlos F. Pacheco, Richard C. Pacheco, Tim M. Padilla, Al Park, Al & Ani Pitts, Feliz Rael, Jason Rael, Clarence R. Ramirez, David Reyes, Bertha Reza, Signe Rich, Jacquelyn Robins, Steven Rogers, Antonia Roybal-Mack, Alex Russell, Juana Rutledge, Rachel Saiz, Cynthia Salazar, Lynette Salinas, Juliet M. Sanchez, Natalia R. Sanchez, Robert Sanchez, Fred Sandoval and Rachel Saiz, Frederick Sandoval, Richard D. Savage, Eric Schuler, Christopher J. Schultz, Frank Seaver, Antoinette Sedillo-Lopez, Jessica Sedillo, Steve Shanor, Ben Sherman, Johnny Silva, Veronica Silva, Carol Skiba, Dan and Jeanne Smith, Leah Sommers, Marc Sommers, Neal Speer, David Standridge, David Steele, Cate Stetson, Robert Stone, Heather Stout, Ira Strain-Bey, Raynard Struck, Zainab Ali Sultan, Felipe Tapia, Eric Teran, Joe and Shirley Thornbrue, Dustin Tiberend, Phillip Torres, Raul Torrez, Kate Trujillo, Patrick F. Trujillo, Tom Valdez, Rich Valle, Catherine R. Vargas, Holly Victorson, Ralph Vincent, Hans Voss, Vincent Ward, Cecilia Webb, Alexandria Willis, Ken Willis, Susie Willis, Kim Wong, William Wong, Andrea Zamora

Paid for by the Committee to Support Metropolitan Court Judge Henry A. Alaniz, Terri Garcia, Treasurer; Danny W. Jarrett, Esq. and Al Park, co-chairs.

Congratulations Henry A. Alaniz on your appointment to the

Bernalillo Country Metropolitan Court Bench

From your Family and Friends!


Notices ................................................................................................................................................................4Young Lawyers Division: 2011 Election Notice and Nomination Petition .............................. 5, 8Court of Appeals: Investiture of J. Miles Hanisee ..................................................................................4New Committee Forming: Committee on the Judiciary . ..................................................................5Board of Bar Commissioners: 2011 Election Notice .............................................................................6New Mexico Courts E-Filing Update, by Chief Justice Charles W. Daniels ...................................7Board Governing the Recording of Judicial Proceedings: Expired Court Monitor Certifications...............................................................................................7Legal Education Calendar ............................................................................................................................9Writs of Certiorari ......................................................................................................................................... 11List of Court of Appeals’ Opinions ........................................................................................................... 13Recent Rule-Making Activity ..................................................................................................................... 14Rules/Orders

Proposed Amendments to Uniform Jury Instructions—Civil .............................................. 16

OpinionsFrom the New Mexico Supreme Court

2011-NMSC-036, No. 32,344: Provencio v. Wenrich ................................................................. 19

2011-NMSC-037, No. 32,486/32,489: City of Rio Rancho v. Amrep Southwest, Inc. .... 24

From the New Mexico Court of Appeals2011-NMCA-087, No. 29,143: State v. Coleman ........................................................................ 31

Advertising ...................................................................................................................................................... 35

Officers, Board of Bar Commissioners Jessica A. Pérez, President Hans Voss, President-Elect Andrew J. Cloutier Vice President Erika Anderson, Secretary-Treasurer Stephen S. Shanor, Immediate Past President

Board of Editors Kimberly L. Alderman Autumn Gray Ian Bezpalko Danny W. Jarrett Cynthia A. Christ Tiffany L. Sanchez Jocelyn C. Drennan Kelly A. Thomas Jennifer C. Esquibel Joseph Patrick Turk

State Bar Staff Executive Director Joe Conte Membership and Communications Director Chris Morganti Editor Dorma Seago 505-797-6030•[email protected] Graphic Designer Julie Schwartz [email protected] Account Executive Marcia C. Ulibarri 505-797-6058•[email protected] Digital Print Center Manager Brian Sanchez Assistant Michael Rizzo ©2011, State Bar of New Mexico. No part of this publica-tion may be reprinted or otherwise reproduced without the publisher’s written permission. The Bar Bulletin has the authority to edit letters and materials submitted for publication. Publishing and editorial decisions are based on the quality of writing, the timeliness of the article, and the potential interest to readers. Appearance of an article, editorial, feature, column, advertisement or photograph in the Bar Bulletin does not constitute an endorsement by the Bar Bulletin or the State Bar of New Mexico. The views expressed are those of the authors, who are solely responsible for the accuracy of their citations and quotations. State Bar members receive the Bar Bulletin as part of their annual dues. The Bar Bulletin is available at the subscription rate of $125 per year and is available online at www.nmbar.org.

The Bar Bulletin (ISSN 1062-6611) is published weekly by the State Bar of New Mexico, 5121 Masthead NE, Albuquerque, NM 87109-4367. Periodicals postage paid at Albuquerque, NM. Postmaster: Send address changes to Bar Bulletin, PO Box 92860, Albuquerque, NM 87199-2860.

505-797-6000•800-876-6227•Fax:505-828-3765 E-mail:[email protected].•www.nmbar.org

September 28, 2011, Vol. 50, No. 38

State Bar WorkShopS

SeptemBer

28 Consumer Debt/Bankruptcy Workshop 6–8 p.m., State Bar Center, Albuquerque

octoBer

12 Lawyer Referral for the Elderly Workshop 9:30–10:45 a.m., Presentation 1–4:30 p.m., Clinics Mary Esther Gonzales Senior Center, Santa Fe

26 Lawyer Referral for the Elderly Workshop 9–10:30 a.m., Presentation 1:30–4:30 p.m., Clinics Meadowlark Senior Center, Rio Rancho

26 Consumer Debt/Bankruptcy Workshop 6–8 p.m., State Bar Center, Albuquerque

Cover Artist: John Rose (www.johnroseillustration.com ) is an Albuquerque native designing and illustrating for over 20 years. Rose’s watercolors show a love for floral, still life and landscape subjects.

taBle of contentS

meetingS

SeptemBer

28

NREEL BOD, noon, State Bar Center

30

Senior Lawyers Division BOD, 4 p.m., State Bar Center

octoBer

3

Attorney Support Group, 5:30 p.m., First United Methodist Church

5

Bankruptcy Law Section BOD, noon, U.S. Bankruptcy Court

6 Real Property, Trust and Estate Section BOD, 11:30 a.m., via teleconference

7 Employment and Labor Law Section Annual Meeting, noon, State Bar Center

8 Ethics Advisory Committee, 10 a.m., State Bar Center

mailto:[email protected]






http://www.johnroseillustration.com


noticeS

With respect to my clients:

I will charge only a reasonable attorney’s fee for services rendered.

profeSSionaliSm tipcourt neWSNM Supreme CourtCommittee/Board Vacancies

Commission on Access to Justice 1Rules of Civil Procedure for District

Court (District Court judge vacancy) 1

Uniform Jury Instructions-Civil 1Uniform Jury Instructions-Criminal 1Rules of Criminal Procedure

for the District Courts 3Children’s Court Rules 1Disciplinary Board 4MCLE 1Board of Legal Specialization 2Code of Professional Conduct 1Code of Judicial Conduct

(judge vacancies) 5 Attorneys interested in volunteering their time on any of these committees/boards may send a letter of interest and/or resume to Kathleen Jo Gibson, Chief Clerk, PO Box 848, Santa Fe, NM 87504-0848. Deadline for letters/resumes is Oct. 21. Interested attorneys should describe why they believe they are qualified and shall prioritize no more than three committees of interest.

Fifth Judicial District CourtJudicial Assignments In accordance with Rule 1-088.1 D, No-tice of Reassignment, effective Sept. 6, cases previously assigned to the now-retired Hon-orable Thomas A. Rutledge, Division IX, will be reassigned to the newly-appointed Honorable Lisa B. Riley, Division IX.

Ninth Judicial District CourtJudicial Assignments In accordance with Rule 5-106 and Rule 1-088.1, Notice of Reassignment, effective Sept. 2, cases previously assigned to the now-deceased Honorable Robert S. Orlik, Divi-sion IV, have been reassigned to the newly appointed Honorable Donna J. Mowrer.

State Bar neWSAttorney Support Group • Oct. 17, 7:30 a.m.–Morning groups

meet regularly on the third Monday of the month.

• Oct. 3, 5:30 p.m.–Afternoon groups meet regularly on the first Monday of the month.

Both groups meet at the First United Methodist Church at Fourth and Lead SW, Albuquerque. For more information, contact Bill Stratvert, 505-242-6845.

Business Law SectionBusiness Lawyer of the Year Award The Business Law Section announces a call for nominations for the Business Lawyer of the Year Award to be presented at the section’s annual meeting Nov. 4. Information about past recipients and a link to the selection criteria may be found at http://www.nmbar.org/AboutSBNM/sections/BusinessLaw/bllawyerawards.html. Nominations are due Oct. 1 and may be submitted by mail to Christine Morganti, State Bar of New Mexico, PO Box 92860, Albuquerque, NM 87199 or by email to [email protected].

Children’s Law SectionAnnual Art Contest The Children’s Law Section Art and Writing Contest aims to help improve the lives of New Mexico’s troubled youth. For this year’s contest, youth who are currently detained or involved in such programs as the Youth Reporting Center, drug court, and anti-domestic violence programs will

use digital cameras to create works based on the theme “The World Through My Lens.” Cash donations are being accepted to help pay for cameras and framing of the submit-ted photographs as well as prizes for contest winners. Monetary donations may be made by Sept. 30 to the Children’s Law Section, State Bar of New Mexico, PO Box 92860, Albuquerque, NM 87199-2860. Donations are tax-deductible through the New Mexico State Bar Foundation, tax exempt number 85-0390079.

You are cordially invited

to attend the Investiture of

J. Miles Hanisee

as Judge of the

New Mexico Court of Appeals

4:30 p.m.,

Friday, September 30, 2011

New Mexico Court of Appeals

Pamela B. Minzner Law Center

2211 Tucker NE, Albuquerque, NM

Reception immediately following ceremony

Please park in L parking lot from 4 p.m. on to avoid ticketing.

Judicial Records Retention and Disposition Schedules Pursuant to the Judicial Records Retention and Disposition Schedules, exhibits (see specifics for each court below) filed with the courts for the years and courts shown below, including but not limited to cases that have been consolidated, are to be destroyed. Cases on appeal are excluded. Counsel for parties are advised that exhibits (see specifics for each court below) can be retrieved by the dates shown below. Attorneys who have cases with exhibits may verify exhibit information with the Special Services Division at the numbers shown below. Plaintiff(s) exhibits will be released to counsel of record for the plaintiff(s), and defendant(s) exhibits will be released to counsel of record for defendant(s) by Order of the Court. All exhibits will be released in their entirety. Exhibits not claimed by the allotted time will be considered abandoned and will be destroyed by Order of the Court.

Court Exhibits/Tapes For Years May Be Retrieved Through1st Judicial District Court Criminal, civil domestic relations, 1981–1997 November 21 505-455-8275 Children’s Court and probate cases

http://www.nmbar.org/AboutSBNM



www.nmbar.org

Employment and Labor Law SectionAnnual Meeting and CLE The Employment and Labor Law Section will hold its annual membership meeting during lunch at the 2011 Employment and Labor Law Institute Oct. 7 at the State Bar Center. Contact Chair Ernestina Cruz, [email protected], to place an item on the agenda. See the CLE-At-a-Glance insert in the Aug. 31 (Vol. 50, No. 34) Bar Bulletin for program details. Register online at www.nmbarcle.org or fax to (505) 797-6071.

Immigration Law SectionAnnual Meeting The Immigration Law Section will hold its annual meeting at 5:30 p.m., Nov. 3, at Garduños Restaurant on Louisiana in Al-buquerque. Everyone is welcome to attend. Appetizers will be provided. Send agenda items to Breanon Cole, [email protected].

Paralegal DivisionLuncheon CLE Series The Paralegal Division invites members of the legal community to bring a lunch and attend Overview of Water Law in New Mexico (1.0 general CLE credit) presented by William Teel. The program will be held from noon–1 p.m., Oct. 12, at the State Bar Center (regis-tration fee for attorneys–$16, members of the Paralegal Division–$10, non-members–$15). Registration begins at the door at 11:45 a.m. For more information, contact Cheryl Pas-salaqua, 505-247-0411, or Evonne Sanchez, 505-222-9356. This CLE will be webcast to two locations:

• Santa Fe: Montgomery & Andrews, 325 Paseo de Peralta, Santa Fe. Contact Donna Ormerod, (505) 986-2520.

• Roswell: Hinkle, Hensley, Shanor & Martin LLP, 400 N. Pennsylvania, Ste. 700. Contact Dora Paz, (575) 622-6510.

Young Lawyers Division2011 Election Members of the State Bar who have practiced law for five years or less or are under the age of 36 are eligible to serve on the YLD board of directors. The following positions are currently available: director-at-large, position 3; region 1 director (11th Judicial district); region 3 director (5th and 9th Judicial districts); region 4 director (3rd, 6th, and 12th Judicial districts and Sierra County); and region 5 director (2nd and 13th Judicial districts and Catron, Socorro and Torrance counties). See the nomination petition on page 8 of this issue. For more information, visit www.nmbar.org and select “About Us/Divisions/Young Lawyers” and click on “Election.” Petitions must be received by 5 p.m., Oct. 14. Should any of the positions be contested, ballots will be available online after Oct. 28.

2011–12 Mentorship ProgramMentors Needed The Young Lawyers Division is seeking volunteer attorneys to serve as mentors for law students during the 2011–12 academic year. There will be a mandatory orientation/CLE (1.0 ethics/professionalism CLE credit) from 4:30–6 p.m., Oct. 4, at the UNM School of Law in Room 2401. All matches will be made at the orientation. Contact Keya Koul, [email protected], or Ben Sherman, [email protected], by Sept. 30 to volunteer.

Speed Networking EventVolunteers Needed The Young Lawyers Division is seek-ing volunteers to participate in a speed

ember benefit of the WeekM

networking event at the State Bar Center from 6–8 p.m., Oct. 6. This event will pair attorneys with UNM law students for speed networking—people meeting each other one at a time for a short interval and then moving on to the next person in line. The goal is to create an environment other than a standard business networking event in which networking connections can be made. For more information or to participate, contact Keya Koul, [email protected].

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most valuable asset. Their tailored and managed services will automatically store and encrypt your firm’s critical data off-site

at their private data centers with 24/7 customer support.

Call 1-866-981-5949 or visit www.corevault.com/sbnm.

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neW Committee forming: Committee on the JudiCiary At its last meeting, the Board of Bar Commissioners voted to appoint a Com-mittee on the Judiciary to address issues the membership identified in the latest membership survey, such as the independence of the judiciary, educating the public on judicial matters, monitoring and responding to criticisms of judges, reviewing judicial campaign activities and partisan judicial races, and judicial compensation. The current Fair Judicial Elections Committee will be merging into the newly formed committee. Members interested in serving on this new com-mittee should send a letter of interest to State Bar Executive Director Joe Conte, [email protected].

2011 national Client ProteCtion organization

fall WorkshoP

The State Bar of New Mexico and the Disciplinary Board of the Supreme Court of New Mexico are sponsoring the 2011 National Client Protection Organization Fall Workshop Oct. 4–5 at the Buffalo Thunder Resort and Casino. Room rates are available at $124 per night and registration is $150. CLE credits are available to New Mexico members (2.5 ethics/professionalism and 7.0 general CLE credits). Visit www.nmbar.org for the full registration form. For more information, call 505-797-6054.


http://www.corevault.com/sbnm


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www.nmbar.org

board of bar Commissioners 2011 eleCtion notiCe Notice is hereby given that the 2011 election of nine commissioners for the State Bar of New Mexico will be held Nov. 30. Nominations to the office of bar commissioner shall be by the written petition of any ten or more members of the State Bar who are in good standing and whose principal place of practice is in the respective district. Members of the State Bar may nominate and sign for more than one candidate.

Nomination petitions must be received by 5 p.m., Oct. 14. Mail nomination petitions to:

Executive Director Joe Conte State Bar of New Mexico PO Box 92860 Albuquerque, NM 87199-2860

Expiring terms, the nomination petition, and more information are available in the Sept. 21 (Vol. 50, No. 37) Bar Bulletin or online at http://www.nmbar.org/AboutSBNM/Governance/BBCElectionNoticePetition.pdf. Direct inquiries to 505-797-6099 or [email protected].

other BarSAlbuquerque Bar AssociationMember Luncheon The Albuquerque Bar Association’s Mem-ber Luncheon will be held at noon, Oct. 4, at the Embassy Suites Hotel, 1000 Woodward Pl. NE, Albuquerque. The luncheon speaker is Chief Staff Attorney Bridget Gavahan, New Mexico Court of Appeals. The CLE (2.0 ethics CLE credits) will immediately follow the luncheon from 1:15 –3:15 p.m. Wendy York will moderate a judges’ panel on the topic, May It Peeve the Court: Observations from the Bench for 2011. Lunch only: $25 members/$35 non-members with reservations; lunch and CLE: $85 members/$115 non-members with reservations; CLE only: $60 members/$80 non-members. Register for lunch by noon, Sept. 30. To register: 1. log on to www.abqbar.org; 2. email [email protected]; 3. call 505-842-1151 or

505-243-2615; 4. fax to 505-842-0287; or 5. mail to PO Box 40,

Albuquerque, NM 87103.

NM Criminal Defense Lawyers AssociationDWI CLE The National College for DUI Defense has approved a DWI CLE (6.5 general CLE credits) on Oct. 21 in Albuquerque as an

NCDD seminar for its college members. “There’s a Bullcoming. Are You Ready?” is sponsored by the New Mexico Criminal De-fense Lawyers Association and features James Nesci from Arizona who will speak on blood testing, and Anthony Palacios from Georgia who will present on SFSTs and DREs. Other speakers include Susan Roth, who was Bull-coming’s appellate counsel before the U.S. Supreme Court, Molly Schmidt-Nowara, Trace Rabern and Ousama Rasheed. Current members (or criminal defense lawyers who wish to join NMCDLA) can register at www.nmcdla.org, email [email protected], or call 505-992-0050.

other neWSNM Association of Legal AdministratorsLaw Firm Management CLE The New Mexico Association of Legal Administrators is hosting Law Firm Man-agement (1.0 ethics/professionalism CLE credit) from noon–1:30 p.m., Oct. 27, at the State Bar Center. James H. Johansen, Monty Morton, and Dan Regan will cover reflections and insights of a former managing partner, a review of financial tools to track success, and HR and people management skills within a law firm. The cost of the program is $25. Lunch will be provided. Register by Oct. 21 at http://www.nmala.org/html/news.php?part=read&nid=23.

UNM Cancer Center FoundationShannon J. Shaw Memorial FundCLE and Social Events The First Annual Advocacy for Cancer Patients Seminar (6.7 general CLE credits and CME credits) will be held from 7 a.m.–5 p.m., Oct. 21, at the Pecos River Village Conference Center in Carlsbad. The dual legal and medical conferences are being held as a fundraiser on behalf of the Shannon J. Shaw Memorial Fund of the UNM Cancer Center Foundation. The fund, established by Shaw’s parents, Jeff and Evy Diamond, seeks to provide education, early diagnosis, and treatment of melanoma to medically under-served communities. The seminar will address advocacy issues for all cancer patients. There will be a joint legal and medical roundtable discussion. Lunch guest speakers will be New Mexico Senator Tim Jennings and UNM Cancer Center Director and CEO Dr. Cheryl Willman. The cost of the seminar is $250 with all fees donated to the Shannon J. Shaw Memorial Cancer Fund. A continental breakfast will be served, and an evening cocktail party and silent auction are also planned. A benefit team roping event is scheduled for the following day, Oct. 22, at 10 a.m. at the Eddy County Sheriff’s Posse Arena. For more information or to register, visit www.listentoyourmom.org or call 877-622-3065.

http://www.abqbar.org


http://www.nmcdla.org



http://www.nmala


http://www.listentoyourmom.org

http://www.nmbar.org/AboutSBNM/Governance/BBCElectionNoticePetition.pdf


neW mexiCo Courts e-filing uPdateby Charles W. Daniels, Chief JusticeNew Mexico Supreme Court

Electronic filing is finally becoming a long overdue reality in our state courts. It’s already up and running for all civil cases in the 13th Judicial District and will be fully operational in all civil cases in the 1st District beginning October

3 and the 2nd District beginning October 31. It will continue to be rolled out systematically around the rest of the state as soon as limited state funding and personnel resources will permit, with criminal e-filing following the completion of civil toward the end of 2012. For more information:

• go to http://www.nmcourts.gov/index.php and click on the “E-Filing” link,

• contact the clerks of e-filing courts, or

• use the “Contact” information on the e-filing launch page of any participating court’s website to get help from our software experts by phone at 1-800-297-5377 or by email at [email protected].

We have no doubt that bringing us into the digital age will ultimately increase efficiency and reduce costs for litigants, attorneys, and courts in a very short time. Even though we have been unable to get state funding to pay all associated costs, the minimal $6 charge for an unlimited number of documents in a single e-filing and the $4 charge for instant e-service are a fraction of filer costs of materials, supplies, and personnel involved in producing, transporting, filing and mailing paper documents, which a number of studies have shown to cost between $15 and $30 for an average filing.

We appreciate your understanding and support during this transition phase while we overcome inevitable glitches and familiarize everyone with the process.

Name Monitor No.Baldonado, Uriah 085 Begay-Smid, Yolanda 088 Brown, Lacretia 042 Carrillo, Delma 224 Collins, Maria 098 Dalley, Tanya 207 DeLaFuente, Michelle 020 Del Rio, Eva 036 Emerson, Kim 040 Farrar, Deborah 032 Gallegos, Connie 136Gutierrez, Chayenne 177 Hannaweeke, Justine 137 Haugh, Jared 186 Hedrick, Robert 289 Henry, Janet 257

Name Monitor No.Howell, Laurie 259 Kennedy, Shannon 296 Kie, Monica 005 Lopez, Mary 029Madellin, Melinda 239 Miera, Monique 240Montenegro, Julia 045 O’Mary, Miranda 356 Christine Pape 100 Partin, Delma 312 Proctor, Roger 195 Prokop, Shirley 074 Quintana, Joseph 256 Rexrode, Edward 119 Romero, Rosalie 348 Ysasi, Elizabeth 328

The Board GoverninG The recordinG of Judicial ProceedinGs

a Board of The suPreme courT of new mexico

exPired Court monitor CertifiCationsThe following list includes the names and certification numbers of those monitors whose New Mexico certifications are no longer in effect:

Submit

announcements

for publication in

the Bar Bulletin to

[email protected]

by noon Monday

the week prior to

publication.

http://www.nmcourts.gov/index.php




NOMINATION PETITION

FOR YOUNG LAWYERS DIVISION ELECTIONAny division member practicing in New Mexico may nominate candidates for the positions of: Director-At-Large, Position 3; Region 1 Director; Region 3 Director; Region 4 Director; and Region 5 Director.Region directors may be nominated only by division members in their region. Petitions due back to State Bar by Oct. 14.

(1) _________________________________________ ________________________________________________

_________________________________________ ________________________________________________

(2) _________________________________________ ________________________________________________

_________________________________________ ________________________________________________

(3) _________________________________________ ________________________________________________

_________________________________________ ________________________________________________

(4) _________________________________________ ________________________________________________

_________________________________________ ________________________________________________

(5) _________________________________________ ________________________________________________

_________________________________________ ________________________________________________

(6) _________________________________________ ________________________________________________

_________________________________________ ________________________________________________

(7) _________________________________________ ________________________________________________

_________________________________________ ________________________________________________

(8) _________________________________________ ________________________________________________

_________________________________________ ________________________________________________

(9) _________________________________________ ________________________________________________

_________________________________________ ________________________________________________

(10) _________________________________________ ________________________________________________

_________________________________________ ________________________________________________

Please include your address next to your name

Signature

Type or Print Name Address

Signature


Signature


Signature


Signature


Signature


Signature


Signature


Signature


Signature


We, the undersigned members of the Young Lawyers Division in good standing, nominate _____________________

_____________________________________ of ___________________________, New Mexico, for the position of

___________________________________, Young Lawyers Division Board of Directors.

Date Submitted:___________________________


legal education

3 Skeptically Determining the Limits of Expert Testimony and Evidence, Part 2

4.7 G, 2.0 EP Video Replay 3rd Judicial District Court

Jury Assembly Room 1 201 W. Picacho Ave, Las Cruces Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

4 26th Annual Bankruptcy Year in Review

6.0 G, 1.0 EP Video Replay Albuquerque Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

4 2011 Ethics/Professionalism: Conquering the Pitfalls of Our Profession for a Healthy and Successful Career

2.0 EP Video Replay 3rd Judicial District Court


4 Eighth Annual Elder Law Spring Seminar–Residential Options: Your Place or Mine?

3.5 G Video Replay 3rd Judicial District Court


4 The Federal Process in New Mexico

6.0 G Video Replay Albuquerque Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

octoBer

4 Fixing Broken Trusts 1.0 G Teleseminar State Bar Center Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

4–5 2011 National Client Protection Organization Fall Workshop

7.0 G, 2.5 EP Buffalo Thunder Resort and Casino State Bar of New Mexico and the Disciplinary Board of the New

Mexico Supreme Court 505-797-6054

6 Environmental Liability in Real Estate Transactions

1.0 G Teleseminar State Bar Center Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

7 2011 Employment and Labor Law Institute

5.0 G, 1.0 EP State Bar Center Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

7 2011 Health Law Symposium: Health Care Fraud and Abuse Regulation


11–12 Drafting LLC Operating Agreements, Parts 1 and 2


13 Trial Practice CLE: Ethics and Professionalism from a Judge’s Perspective

2.0 EP State Bar Center Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

14–15 27th Annual Family Law Institute– When Boomers Divorce: Special Problems in Divorce After 50


18 2011 Americans With Disabilities Act Update


18 ABCs of Foreclosure (2010) 3.7 G Video Replay Albuquerque Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

18 An Attorney’s Guide to Good Lawyering for People With Disabilities (2009)

1.0 EP Video Replay Albuquerque Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

18 First Annual Solo and Small Firm Institute: Social Media and Communication



















legal education www.nmbar.org

18 Gender Roles in the Courtroom (2011 Annual Meeting)


18 Skeptically Determining the Limits of Expert Testimony and Evidence, Part 2


20 Uniting New Mexicans Against Adult Abuse Annual Conference

Albuquerque 2.0 G, 2.0 EP 505-881-7970

21 Craig Othmer Memorial Procurement Code Institute

3.0 G, 1.0 EP StatePersonnelOfficeAuditorium 2600 Cerrillos Road, Santa Fe Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

21 First Annual Advocacy for Cancer Patients Seminar

6.7 G Pecos River Village Conference

Center, Carlsbad Shannon J. Shaw Memorial Fund Jeff and Evy Diamond 877-622-3065 www.listentoyourmom.org

21 Immigration Law CLE 4.5 G, 1.0 EP State Bar Center Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

21 There’s a Bullcoming. Are You Ready?

6.5 G Albuquerque New Mexico Criminal Defense

Lawyers Association 505-992-0050 www.nmcdla.org

25 2011 Ethics/Professionalism: Conquering the Pitfalls of Our Profession for a Healthy and Successful Career

2.0 EP Video Replay Albuquerque Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

25 The Court of Public Opinion (2011 Annual Meeting)


25 Medicine of Personal Injury 6.0 G Video Replay Albuquerque Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

25 Recent Developments on the Supreme Court: A New Disciplinary Process (2011 Annual Meeting)


25 Representing Claimants in Social Security Disability Appeals (2010)


25 Workers’ Compensation to Social Security (2010)


26 Representing Your Client in Federal Court

5.0 G, 1.0 EP Albuquerque NBI, Inc. 800-930-6182 www.nbi-sems.com

27 Law Firm Management 1.0 EP Albuquerque New Mexico Association

of Legal Administrators 505-884-0777 http://www.nmala.org/html/news.

php?part=read&nid=23

28 2011 Fall Elder Law Institute: VA Accreditation and What Practitioners Need to Know About Changes to the Probate Code and Guardianships

7.2 G State Bar Center Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org





http://www.listentoyourmom.org









http://www.nbi-sems.com

http://www.nmala.org/html/news



Kathleen Jo Gibson, Chief Clerk New Mexico Supreme Court PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860

effective SeptemBer 28, 2011

Writs of certiorarias updated By the clerk of the neW Mexico supreMe court

petitions for Writ of certiorari filed and pending: Date Petition FiledNO. 33,218 State v. Lovato (COA 30,438) 9/16/11NO. 33,217 State v. Ramos (COA 29,514) 9/15/11NO. 33,216 Flores v. Henderson (COA 31,295) 9/15/11NO. 33,214 Silva v. Acting Warden (12-501) 9/15/11NO. 33,213 State v. Portillo (12-501) 9/15/11NO. 33,211 Wells Fargo Bank v. Jones (COA 31,125) 9/15/11NO. 33,210 State v. Romero (COA 29,121) 9/14/11NO. 33,166 Christus St. Vincent Reg.

Med. Ctr. V. Duarte-Afara (COA 30,343) 9/14/11NO. 33,209 State v. Garza (COA 30,432) 9/12/11NO. 33,202 State v. Cale (COA 30,006) 9/12/11NO. 33,194 City of Rio Rancho v.

King (COA 31,094) 9/12/11NO. 33,205 State v. Powell (COA 29,232) 9/9/11NO. 33,204 State v. Martinez (COA 29,920) 9/9/11NO. 33,203 State v. Davis (COA 28,219) 9/9/11NO. 33,201 State v. Burbank (COA 29,938) 9/8/11NO. 33,199 Maestas v. Medina (COA 29,819) 9/8/11NO. 33,196 Maestas v. Medina (COA 29,819) 9/8/11NO. 33,192 State v. Frohnhofer (COA 30,001) 9/7/11NO. 33,147 Prather v. Lyons (COA 29,812) 9/7/11NO. 33,191 State v. Wiggins (COA 30,051) 9/6/11NO. 33,190 State v. Franco (COA 31,062) 9/6/11NO. 33,189 State v. Davis (COA 30,760) 9/6/11NO. 33,158 Trujillo v. Bravo (12-501) 9/2/11NO. 33,186 State v. Colter (COA 31,108) 9/1/11NO. 33,187 State v. Lewis (COA 31,111) 8/31/11NO. 33,185 State v. Casillas (COA 31,053) 8/31/11NO. 33,184 State v. Guthrie (COA 29,863) 8/30/11NO. 33,183 State v. Halwood (COA 29,679) 8/30/11NO. 33,181 State v. Leathers (COA 29,285) 8/30/11NO. 33,178 State v.

Tiny Louise M.M. (COA 31,202) 8/25/11NO. 33,176 State v. Archie M. (COA 31,248) 8/25/11NO. 33,174 State v. Angela M (COA 30,429) 8/25/11NO. 33,159 Storm Ditch v.

D’Antonio (COA 29,778) 8/22/11 Responsefiled9/1/11NO. 33,164 State v. Martinez (COA 31,237) 8/17/11NO. 33,108 Martinez v.

Pojoaque Gaming, Inc. (COA 29,975) 8/5/11 Responsefiled9/13/11NO. 33,139 State v. Polson (COA 31,138) 8/1/11 Responsefiled9/14/11NO. 33,134 Martinez v. Bustos (12-501) 7/26/11 Responsefiled8/29/11

certiorari granted But not yet suBMitted to the court:

(Parties preparing briefs) Date Writ IssuedNO. 32,532 Gutierrez v. Hatch (12-501) 9/15/10NO. 32,603 Holguin v. Fulco Oil (COA 29,149) 10/18/10NO. 32,605 State v. Franco (COA 30,028) 10/18/10NO. 32,770 State v. Sneed (COA 30,467) 1/27/11NO. 32,742 State v. Martinez (COA 30,637) 1/31/11NO. 32,804 State v. Servantez (COA 30,414) 2/7/11NO. 32,860 State v. Stevens (COA 29,357) 3/15/11NO. 32,882 State v. Little (COA 29,731) 4/4/11NO. 32,895 State v. Gonzales (COA 30,541) 4/4/11NO. 32,876 Gonzales v. State (12-501) 4/7/11NO. 32,899 State v. Esparza (COA 28,911) 4/27/11NO.32,937 SFPacificTrustv.

City of Albuquerque (COA 30,930) 5/3/11NO. 32,940 State v. Vest (COA 28,888) 5/3/11NO. 32,939 United Nuclear Corp. v.

Allstate Insurance Co. (COA 29,092) 5/4/11NO. 32,943 State v. Hall (COA 29,138) 5/11/11NO. 32,976 State v. Olson (COA 29,010) 5/24/11NO. 32,985 Helena Chemical Company

v. Uribe (COA 29,567) 6/8/11NO. 32,987 Helena Chemical Company

v. Uribe (COA 29,567) 6/8/11NO. 33,001 State v. Rudy B. (COA 27,589) 6/8/11NO. 33,008 State v. Lasky (COA 28,782) 6/8/11NO. 33,011 Felts v. CLK

Management, Inc. (COA 29,702/30,142) 6/8/11NO. 33,013 Felts v. CLK

Management, Inc. (COA 29,702/30,142) 6/8/11NO. 33,014 State v. Crane (COA 29,470) 6/8/11NO. 33,023 State v. Gurule (COA 29,734) 6/8/11NO. 33,046 State v. Munoz (COA 30,837) 7/21/11NO. 33,075 State v. Marchiondo (COA 30,029) 7/21/11NO. 33,057 State v. Turrietta (COA 29,561) 7/26/11NO. 33,070 Montoya v.

City of Albuquerque (COA 29,838) 8/5/11NO. 33,077 State v. Gonzales (COA 28,700) 8/5/11NO. 33,083 Martinez v. Department of

Transportation (COA 28,661) 8/5/11NO. 33,133 Spencer v. Barber (COA 29,390) 9/9/11NO. 33,143 State v. Owelicio (COA 30,461) 9/9/11NO. 33,161 Duran v. Carisbrook, Inc. (COA 30,067) 9/9/11NO. 33,154 State v. Carillo (COA 29,258) 9/12/11NO. 33,135 Horne v. Los Alamos

National Security (COA 29,822) 9/14/11NO. 33,136 State v. Bent (COA 29,227) 9/16/11


Writs of certiorari http://nmsupremecourt.nmcourts.gov.

certiorari granted and suBMitted to the court:

(Submission = date of oral argument or briefs-only submission)Submission Date

NO. 31,100 Allen v. LeMaster (12-501) 2/15/10NO. 32,099 Wachocki v. Bernalillo Co.

Sheriff’s Dept. (COA 27,761) 7/19/10NO. 32,131 Wachocki v. Bernalillo Co.

Sheriff’s Dept. (COA 27,761) 7/19/10NO. 32,149 State v. Sandoval (COA 28,437) 8/30/10NO. 32,137 State v. Skippings (COA 28,324) 10/13/10NO. 32,130 State v. Cruz (COA 27,292) 10/14/10NO. 32,170 State v. Ketelson (COA 29,876) 11/16/10NO. 32,447 Mendoza v.

Tamaya Enterprises (COA 28,809) 1/10/11NO. 32,486 City of Rio Rancho v.

Amrep (COA 28,709) 1/11/11NO. 32,489 City of Rio Rancho v.

Cloudview Estates (COA 29,510) 1/11/11NO. 32,234 State v. Trujillo (COA 29,870) 2/23/11NO. 32,524 Republican Party v.

Tax & Revenue Dept. (COA 28,292) 3/14/11NO. 32,594 Smith v. Durden (COA 28,896) 3/15/11NO. 32,505 Charley v.

Franklin Corporation (COA 28,876) 3/22/11NO. 32,542 Quintero v. Department of

Transportation (COA 28,875) 3/22/11NO. 32,545 State ex rel. CYFD v.

Octavio F. (COA 29,469) 3/23/11NO. 32,534 Bustos v. Hyundai Motor

Company (COA 28,240) 4/11/11NO. 32,570 City of Albuquerque v.

Montoya (COA 28,846) 4/11/11NO. 32,695 Diamond v.

Diamond (COA 30,009/30,135) 5/10/11NO. 32,690 Joey P. v. Alderman-Cave

Milling & Grain Co. (COA 29,120) 5/11/11NO. 32,756 Lenscrafters, Inc. v.

Kehoe (COA 28,145) 7/18/11NO. 32,388 State v. Harper (COA 27,830) 7/27/11NO. 32,402 State v. Harper (COA 27,830) 7/27/11NO. 32,577 May v. DCP

Midstream LP (COA 29,331/29,490) 8/15/11NO. 32,291 State v. Torres (COA 29,603) 8/16/11NO. 32,677 State v. Rivera (COA 29,317) 8/16/11NO. 32,436 Estate of Gutierrez v.

Meteor Monument (COA 28,799) 8/17/11NO. 32,589 State v. Ordunez (COA 28,297) 8/31/11NO. 32,776 Sais v. NM Department

of Corrections (COA 30,785) 9/12/11NO. 32,707 Smith LLC v. Synergy

Operating LLC (COA 28,248/28,263) 9/12/11NO. 32,789 Chatterjee v. King (COA 29,823) 9/12/11NO. 32,696 Herbison v. Chase Bank (COA 30,630) 9/13/11NO. 32,483 State v. Jackson (COA 28,657) 9/28/11NO. 32,697 State v. Amaya (COA 28,347) 9/28/11NO. 32,868 Nunez v. Armstrong

General Contractors (COA 29,522) 10/11/11NO. 32,844 Gonzalez v. Performance

Paint, Inc. (COA 29,629) 10/11/11

NO. 32,510 State v. Swick (COA 28,316) 10/12/11NO. 32,713 Bounds v. D’Antonio (COA 28,860) 10/13/11NO. 32,717 NM Farm and Livestock

Bureau v. D’Antonio (COA 28,860) 10/13/11NO. 32,548 State v. Robles (COA 30,118) 10/26/11NO. 32,791 Snider v. State (12-501) 10/26/11NO. 32,942 Schuster v. Taxation &

Revenue Dept. (COA 30,023) 11/14/11NO. 32,968 Sunnyland Farms, Inc. v.

Central NM Electric (COA 28,807) 11/14/11NO. 32,704 Tri-State v.

State Engineer (COA 27,802) 11/14/11NO. 32,915 State v. Collier (COA 29,805) 11/15/11NO. 32,944 Freedom C. v. Brian D. (COA 30,041) 11/15/11NO. 32,430 State v. Muqqddin (COA 28,474) 11/16/11NO. 32,632 State v.

Dominguez-Meraz (COA 30,382) 11/16/11NO. 32,941 Titus v.

City of Albuquerque (COA 29,461) 11/16/11NO. 32,360 State v. Figueroa (COA 28,798) 11/30/11NO. 32,800 State v. Spearman (COA 30,493) 11/30/11

petition for Writ of certiorari denied:

NO. 33,138 State v. Silva (COA 30,204) 8/29/11NO. 33,142 State v. Sorrelhorse (COA 29,894) 8/29/11NO. 33,156 McMullin v. Martinez (12-501) 8/29/11NO. 33,163 State v. Cotton (COA 30,014) 8/29/11NO. 33,130 State v. Anthony G. (COA 30,996) 9/2/11NO.33,145 Statev.Whitfield (COA29,774) 9/2/11NO. 33,146 State v. Nicholas (COA 30,999) 9/6/11NO. 33,151 Holguin v.

Sally Beauty Supply (COA 29,624) 9/7/11NO. 33,153 Semrau v.

Lakeside Veterans Club (COA 29,134) 9/7/11NO. 33,162 State v. Pena (COA 29,690) 9/7/11NO. 33,173 Bonilla v. Romero (12-501) 9/7/11NO. 33,177 Patscheck v. Hickson (12-501) 9/7/11NO. 33,114 State v. Cory L. (COA 31,078) 9/13/11NO. 33,113 Martinez v.

Pojoaque Gaming, Inc. (COA 29,975) 9/16/11NO. 33,160 Lewis v. Sharpe (COA 31,210) 9/16/11NO. 33,170 State v. Randy J. (COA 29,791) 9/16/11NO. 33,171 State v. Sena (COA 30,935) 9/16/11NO. 33,172 State v. Jordan S. (COA 31,074/31,075) 9/16/11

petition for Writ of certiorari disMissed:

NO. 33,104 Barron v. Evangelical Lutheran Good Samaritan Society (COA 29,707) 9/14/11

petition for Writ of certiorari reManded to neW Mexico court of appeals:

NO. 33,140 Duran v. State (12-501) 9/16/11

http://nmsupremecourt.nmcourts.gov


UnpUblished OpiniOns

Date Opinion FiledNo.30881 6thJudDistLunaLR-10-11,CITYOFDEMINGvJNOVELO(affirm) 9/12/2011No.31208 2ndJudDistBernalilloCV-10-1514,RMUELLERvKMASI(affirm) 9/12/2011No.29854 13thJudDistCibolaJQ-06-17,CYFDvJASONT(affirm) 9/14/2011No.30193 1stJudDistSantaFeCV-08-2982,VMARCIANOvSTRATEGIC(affirminpart,

reverse in part and remand) 9/14/2011No. 31107 5th Jud Dist Lea CR-09-222, STATE v M HAGAN (dismiss) 9/14/2011No.29338 5thJudDistLeaCR-08-153,STATEvJGARCIA(affirm) 9/15/2011No. 31011 4th Jud Dist San Miguel CV-07-211, D QUINTANA v A TAPIA (reverse) 9/15/2011No.31071 2ndJudDistBernalilloCV-10-14708,MTRUJILLOvSTATENM(affirm) 9/15/2011No.31195 2ndJudDistBernalilloDM-94-4535,YCRITCHFIELDvLBROWN(affirm) 9/15/2011No.31306 11thJudDistSanJuanCV-10-1662,CRHAMESvOESPARZA(affirm) 9/15/2011No. 29632 5th Jud Dist Eddy CR-07-350, STATE v M JIMENEZ (reverse) 9/16/2011No. 30875 7th Jud Dist Sierra CV-06-24, O’BRIEN v C KELLEY (dismiss) 9/16/2011No.31224 9thJudDistCurryCR-09-303,STATEvCMATHIS(affirm) 9/16/2011

opinionsas updated By the clerk of the neW Mexico court of appeals

Gina M. Maestas, Chief Clerk New Mexico Court of Appeals PO Box 2008 • Santa Fe, NM 87504-2008 • (505) 827-4925


Slip Opinions for Published Opinions may be read on the Court’s website:http://coa.nmcourts.gov/documents/index.htm

http://coa.nmcourts.gov/documents/index.htm


Kathleen Jo Gibson, Chief Clerk New Mexico Supreme Court PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860

recent rule-Making activityas updated By the clerk of the neW Mexico supreMe court


pending prOpOsed rUle Changes Open fOr COmment

Comment Deadline13-2304 Retaliatory discharge 10/19/1113-2320 Special verdict form for wrongful discharge cas-

es 10/19/1113-2006 All jurors to participate 10/19/1113-815 Promissoryestoppel;definition 10/19/1114-5040 Use of voluntary confession or admission 09/28/11

reCently apprOved rUle Changes sinCe release Of 2011 nmra

Effective Date

rules of civil procedure for the district courts

1-071.1 Statutory stream system adjudication suits; service and joinder of water rights claimants; responses 06/08/11

1-071.2 Statutory stream system adjudication suits; stream system issue and expedited inter se proceedings 06/08/11

1-071.3 Statutory stream system adjudication suits; annual joint working session 06/08/11

1-071.4 Statutory stream system adjudication suits; ex parte contacts; general problems of administration 06/08/11

1-071.5 Statutory stream system adjudication suits; excusal or recusal of a water judge 06/08/11

1-023 Class actions 05/11/111-077 Appeals pursuant to Unemployment Compensation Law 04/18/111-079 Public inspection and sealing

of court records 02/07/11

rules of civil procedure for the Magistrate courts

2-112 Public inspection and sealing of court records 02/07/11

rules of civil procedure for the Metropolitan courts

3-105 Assignment and designation of judges 05/27/113-701 Appeal from metropolitan court

on the record 05/27/113-112 Public inspection and sealing


civil forMs

4-831 Petition for writ of certiorari in appeal pursuant to Unemployment Compensation Law 04/18/11

4-832 Writ of certiorari in appeal pursuant to Unemployment Compensation Law 04/18/11

4-222 Applicationforfreeprocessandaffidavit of indigency 02/09/11

4-223 Order for free process 02/09/114-224 Attorney’scertificatesupportingindigency

and free process 02/09/11

rules of criMinal procedure for the district courts

5-123 Public inspection and sealing of court records 02/07/11

5-805 Probation; violation 01/31/115-604 Time of commencement of trial for cases

ofconcurrenttrialjurisdictionoriginallyfiled in the magistrate, metropolitan, or municipal court 03/23/11

rules of criMinal procedure for the Magistrate courts

6-701 Judgment 03/25/116-114 Public inspection and sealing


rules of criMinal procedure for the Metropolitan courts



rules of procedure for the Municipal courts



children’s court rules and forMs

10-223A Physical restraints in the courtroom [Suspended until further order of the court] 09/30/11

10-426 Motion for use of physical restraints [Suspended until further order of the court] 09/30/11 10-427 Order on physical restraints [Suspended until further order of the court] 09/30/1110-162 Peremptory challenge to a children’s court

judge; recusal; procedure for exercising; disability 09/09/11

Form 10-496A Order for evaluation of competency to stand trial 09/09/11

Form 10-496B Order for diagnostic evaluation 09/09/11Form 10-496C Order for pre-dispositional diagnostic

evaluation 09/09/11Form 10-496D Order for evaluation of amenability to

treatment for youthful offender (requested by defense counsel) 09/09/11

Form 10-496E Ex parte order for forensic evaluation 09/09/1110-166 Public inspection and sealing

of court records 02/07/1110-409 AffidavitforArrestWarrant 02/14/1110-410 Arrest Warrant 02/14/11


rule-Making activity http://nmsupremecourt.nmcourts.gov.

To view all pending proposed rule changes (comment period open or closed), visit the New Mexico Supreme Court’s website at http://nmsupremecourt.nmcourts.gov.

To view recently approved rule changes, visit the New Mexico Compilation Commission’s website at http://www.nmcompcomm.us.

10-412A Bench warrant 02/14/1110-137 Continuing duty to disclose;

failure to comply 01/31/1110-312 Filing of petition; amendment of petition;

appointment of guardian ad litem or attorney 01/31/11

rules of evidence

11-804 Hearsay exceptions; declarant unavailability 01/31/11

rules of appellate procedure

12-405 Opinions 09/12/1112-215 Brief of an amicus curiae 06/28/1112-306 Number of copies of papers 06/28/1112-302 Appearance, withdrawal or substitution

of attorneys 05/16/1112-314 Public inspection and sealing

of court records 02/07/1112-210 Calendar assignments 02/09/1112-309 Motions 02/09/11

uJi civil

13-110 Conduct of jurors 03/21/1113-305 Causation (Proximate cause) 03/21/1113-306 Independent intervening cause 03/21/1113-1424 Causation; products liability 03/21/11 3-1424A Independent intervening cause;

products liability 03/21/11

uJi criMinal

14-5101 Insanity; jury procedure 04/25/1114-101 Explanation of trial procedures 03/25/1114-114 Recess instructions 03/25/1114-2215 Resisting;evadingorobstructinganofficer,

essential elements 03/21/1114-4511 “Operating” or driving a motor vehicle;

defined 03/21/1114-4512 Actualphysicalcontrol;defined 03/21/11

rules governing adMissions to the Bar

15-205 Administration and grading 09/01/1115-207 Unsuccessful applicants; right of inspection 09/01/11

rules governing discipline

17-309 Formal charges; designation of hearing officerorcommittee 06/01/11

17-105 Disciplinary counsel 03/28/11

rules for MiniMuM continuing legal education

18-201 Minimum educational requirements 05/01/1118-203 Accreditation; course approval;

provider reporting 05/01/1118-204 Earning credits; credit types 05/01/11

supreMe court general rules

23-114 Free process in civil cases 02/09/1123-110 Commission on Professionalism 04/06/11

rules governing the neW Mexico Bar

24-109 Trust accounts; special requirements for IOLTA trust accounts 05/17/11

24-110 “Bridge the Gap: Transitioning into the Profession” program 04/06/11

rules for revieW of Jsc27-104 Filing and service 05/04/1127-106 Form of papers 05/04/11

local rules for the eleventh Judicial district

LR11-120 Service by electronic transmission; water rights adjudication proceedings 02/21/11

local rules for the thirteenth Judicial district

LR13-411Electronicfilingandservicepilotproject 06/13/11



http://www.nmcompcomm.us


rules/ordersFrom the New Mexico Supreme Court


ProPosed Amendments to Uniform JUry instrUctions—civil

The Committee on Uniform Jury Instructions for Civil Cases is considering whether to recommend proposed amendments to the Uniform Jury Instructions—Civil for the Supreme Court’s consideration. If you would like to comment on the proposed amendments set forth below before they are submitted to the Courtforfinalconsideration,youmaydosobyeithersubmittinga comment electronically through the Supreme Court’s web site at http://nmsupremecourt.nmcourts.gov/ or sending your written comments to:

Kathleen J. Gibson, ClerkNew Mexico Supreme CourtP.O. Box 848Santa Fe, New Mexico 87504-0848

Your comments must be received by the Clerk on or before Oct. 19, 2011, to be considered by the Court. Please note that any submitted comments may be posted on the Supreme Court’s web site for public viewing.________________________________13-2304. Retaliatory discharge. In this case you must [also] determine whether __________________________ (employee) was discharged because [he][she] _______________________ (insert con-duct court has determined is protected by public policy). If _______________________ (employee) was discharged be-cause [he] [she] ________________________ (insert conduct court has determined is protected by public policy) [and if ________________________ (employee’s) conduct which trig-gered the discharge was taken in furtherance primarily of a public interest rather than primarily a private interest], then the discharge was retaliatory and was wrongful. In determining whether _______________________ (employee) was discharged because [he] [she] ________________________ (insert conduct court has determined is protected by public policy), you must determine whether that conduct was a motivat-ing factor in the decision to discharge [him] [her]. A motivating factor is a factor that plays a role in the decision to discharge. It need not be the only reason, nor the last nor latest reason, for the discharge.

USE NOTE This instruction should be given in all wrongful discharge cases involving a claim of discharge in violation of public policy. If the case involves issues of employment at will, this instruction should immediately follow UJI 13-2301, UJI 13-2302 or UJI 13-2303, if given. Before this instruction is given, the court must determine as a matter of law that a public policy exists that was violated if plaintiff was discharged for the reason alleged. A statement of the public policy relied on by the plaintiff and a description of the act or refusal to act which was allegedly the reason for the discharge should be inserted in the instruction as indicated. The bracketed clause in the second sentence, which raises the issue of public versus private interest, is to be given only in the limited class of “whistleblower” cases in which the plaintiff made a report of wrongdoing to a private party rather than to public authorities. See Committee commentary.

In some cases, it may be appropriate to give further instruc-tion to the jury on the causation requirement associated with this claim. In those cases, the trial court must fashion a supplemental instruction based on the court’s determination of the governing law. [Approved, effective January 1, 1999; as amended by Supreme Court Order 08-8300-012, effective June 13, 2008.] Committee commentary. — A cause of action in tort for retal-iatory or abusive discharge in violation of public policy originated in Vigil v. Arzola, 102 N.M. 682, 699 P.2d 613 (Ct. App. 1983), reversed on other grounds, 101 N.M. 687, 687 P.2d 1038 (1984), overruled on other grounds, Chavez v. Manville Prods. Corp., 108 N.M. 643, 777 P.2d 371 (1989), and has been recognized by the Supreme Court. See, e.g., Paca v. K-Mart Corp., 108 N.M. 479, 775 P.2d 245 (1989); Hartbarger v. Frank Paxton Co., 115 N.M. 665, 857 P.2d 776 (1993). Relevant public policy may be derived from statutory provi-sions, or the court itself may declare public policy. See Vigil, 102 N.M. at 688-89, 699 P.2d at 619-20; see also Shovelin v. Central N.M. Elec. Co-op., Inc., 115 N.M. 293, 850 P.2d 996 (1993). Public policy would be violated by discharging an employee for making statements criticizing the employer’s misuse of public funds, Vigil v. Arzola, serving as a juror, id., joining a labor union, id.,refusingtocommitperjuryorengageinpricefixing, id., re-fusing to sign a false statement, Zaccardi v. Zale Corp., 856 F.2d 1473 (10th Cir. 1988), exercising the right to vote or refrain from voting, Shovelin v. Central N.M. Elec. Coop., Inc., or seeking relief under the Human Rights Act, Gandy v. Wal-Mart Stores, Inc., 117 N.M. 441, 872 P.2d 859(1994). A discharge based on the employer’s belief or suspicion that the plaintiff engaged in protected activity is wrongful; the plaintiff need not establish the employer’s actual knowledge. See Weidler v. Big J Enters., Inc., 1998-NMCA-021, 124 N.M. 591, 953 P.2d 1089. A retaliatory discharge claim based on an employee’s report-ing of activities that are illegal or raise health or safety concerns (“whistleblowing”) exists only if the employee’s action was taken in furtherance of the public interest rather than primarily to further a private interest. Garrity v. Overland Sheepskin Co., 121 N.M. 710, 917 P.2d 1382 (1996). A retaliatory discharge claim includes a causation element. See Sanchez v. The New Mexican, 106 N.M. 76, 738 P.2d 1321 (1987). “Asufficientnexusmustexistbetweenthepublicpolicyassertedby the employee and the reasons for his or her discharge.” Vigil, 102 N.M. at 689, 699 P.2d at 620. The instruction above adopts a “motivating factor” formulation for the causation element. See Weidler, 1998-NMCA-021, ¶ 15. The second-to-last sentence of the instruction previously stated as follows: “A motivating factor is a factor that plays a role in the decision to discharge and without which the discharge would not have happened.” (Emphasis added.) The 2008 amendment deleted the italicized language. The New Mexico Supreme Court has rejected the “but for” test as inapplicable to employment claims brought under the New Mexico Human Rights Act. See Nava v. City of Santa Fe, 2004-NMSC-039, 136 N.M. 647, 103 P.3d 571. Federal courts have developed approaches to the causation issue that may be applicable in certain circumstances under New Mexico law. See McDonnell-Douglas Corp. v. Green, 411 U.S. 702 (1973) (indirect evidence of impermissible motive); Price Waterhouse





http://www.nmcompcomm.us/v. Hopkins, 490 U.S. 228 (1989) (mixed motive). Further instruc-tion may therefore be necessary in a particular case for the jury to understand and apply the causation requirement. It will be the responsibility of the trial court when necessary to prepare a supplemental instruction on causation appropriate to the case. In Chavez v. Manville Products Corp. 108 N.M. 643, 777 P.2d 371, 376 (1989), the Supreme Court overruled the portions of Vigil v. Arzola that required proof of causation by clear and convincing evidence and that limited recovery to pecuniary losses. Punitive damages are recoverable on a retaliatory discharge claim. Vigil. Mitigation of damages by the plaintiff is required. Vigil; see also Chavez. [Approved, effective January 1, 1999; as amended by Supreme Court Order No. , effective .]________________________________13-2320. Special verdict form for wrongful discharge cases. Question 1: (A) Was there an implied contract of employment between _________________ (plaintiff) and ________________________ (defendant) that ________________________ (plaintiff) would only be discharged [for cause] [and] [or] [through the use of certain procedures]? Answer: ______________ (Yes or No) If the answer to Question 1(A) is “Yes,” answer Question 1(B). If the answer to Question 1(A) is “No,” go to Question 2. (B) Did ________________________ (defendant) breach the implied contract of employment with ________________________ (plaintiff)? Answer: ______________ (Yes or No) If the answer to Question 1(A) is “Yes,” and you have answered Question 1(B) (regardless of the answer), go to Question 3. Question 2: [Did _________________________ (defendant) discharge ___________________ (plaintiff) in retaliation for _____________________________ (identify public policy in issue)?]Was ___________________ (name of the plaintiff)’s _______________________ (alleged impermissible basis for termination) a motivating factor in the decision to discharge ____________________ (name of the plaintiff)? Answer: ______________ (Yes or No) Go to Question 3. Question 3: Did __________________________ (defendant) discharge ____________________ (plaintiff) in violation of _____________________ (identify the statute in question, e.g., the New Mexico Human Rights Act, Title VII, etc.)? Answer: ______________ (Yes or No) If you did not answer Question 1(B) or if you answered “No” to Question 1(B), and if the answers to Question 2 and Question 3 are “No,” you are not to answer further questions. Your foreperson must sign this special verdict, which will be your verdict for the defendant and against the plaintiff, and you will all return to open court. If your answer to any of Questions 1(B), 2, or 3 is “Yes,” you are to answer Question 4.Question 4: Did _______________’s (defendant’s) conduct cause damage to _______________ (plaintiff)? Answer: _______________ (Yes or No) If the answer to Question 4 is “No,” you are not to answer further questions. Your foreperson must sign this special verdict, which will be your verdict for the defendant and against the plaintiff, and you will all return to open court. If the answer to Question 4 is “Yes,” also answer Question 5.

Question 5: In accordance with the damage instruc-tions given by the court, we find the damages suffered by ________________________ (plaintiff) to be: (Elements of damages) (Amount) __________________ $______________ __________________ $______________

If the answer to Question 2 is “Yes,” also answer Question 6. Question 6: Did ________________________ (plaintiff) suffer emotional distress as a result of ________________________’s (defendant’s) violation of _________________ (a statute allow-ing for recovery of emotional distress damages, e.g., the New Mexico Human Rights Act or Title VII)? Answer: _______________ (Yes or No) If the answer to Question 6 is “Yes,” also answer Question 7. Question 7: In accordance with the damage instruc-tions given by the court, we find the damages suffered by ________________________ (plaintiff) for emotional distress to be $________________________. ______________________________ Foreperson

USE NOTE This instruction provides a form of special verdict for a wrong-ful discharge case involving claims for breach of an implied employment contract, retaliatory discharge, and violation of the New Mexico Human Rights Act [28-1-1 NMSA 1978]. It should bemodifiedasnecessarytosuitthecaseathand.TheCourtmayexercise its discretion to utilize a general verdict form if appropri-ate in a given case. The Court should determine the appropriate elements of damage to be included under Question 5. [Approved, effective January 1, 1999; as amended by Supreme Court Order 08-8300-012, effective June 13, 2008; as amended by Supreme Court Order No. , effective .] ________________________________13-2006. All jurors to participate. The jury acts as a body. Therefore, on every question on the verdict form which the jury must answer it is necessary that all jurors participate regardless of the vote on another question. Beforeaquestioncanbeanswered,atleast[five][ten]ofyoumustagreeupontheanswer;however,thesame[five][ten]neednot agree upon each answer.[Amended by Supreme Court Order No. , effective .]

USE NOTE This instruction shall be given in all civil jury cases in New Mexico, whenever there is more than one matter for the jury to settle. Committee commentary. — Active participation by the entire jury is the intent of the jury system. Simply because one or more jurors disagree on a particular issue [would] does not justify their being excluded from further deliberations. [Therefore, if a juror should refuse to vote with the majority on liability but there would be the required number voting in favor of liability, that juror should not be excluded from discussions or voting on damages.] Each individual juror’s answers to the questions on the verdict form must be consistent. Naumburg v. Wagner, 81 N.M. 242, 465 P.2d 521 (Ct. App. 1970). [Adopted by Supreme Court Order No. , effective .] ________________________________




http://www.nmcompcomm.us/13-815. Promissory estoppel; definition. [[If there was no consideration for __________________’s promise, the promise still may be enforceable if:] [A promise may be enforceable if:] 1. __________________ made the promise; 2. ____________ reasonably relied on __________________’s promise; 3. __________________’s reliance on the promise was reasonably foreseeable to __________________; and 4. __________________ suffered some economic loss or other detriment as a result of [his] [her] reliance on __________________’s promise.

USE NOTE Thefirstbracketedopeningclauseshouldbeusedwherethisinstruction is given together with UJI 13-814 NMRA. If this instruction is not given in conjunction with UJI 13-814 NMRA, the second bracketed opening clause should be used. The judge has a threshold responsibility in promissory estoppel cases to determine what items of damages may be recovered (e.g., ex-pectancy damages, consequential damages). This may require the judge to make determinations of reasonableness and fairness which in other situations might be considered factual. Once the judge determines which items of damages may be recovered, these items should be included in UJI 13-843 NMRA and the jury chargedtomakethefact-findingastotheamountofdamages,ifany. ] ________________________ (name of the plaintiff) [also] seeks damages based upon a claim of promissory estoppel. To establish this claim, ______________________(name of the plaintiff) must prove all of the following: 1. that _________________ (name of the defendant) made a promise to ____________________ (name of the plaintiff); 2. that _________________ (name of the plaintiff) relied on the promise and it was reasonable for [him] [her] to do so; 3. that the promise caused ___________________ (name of the plaintiff) to ______________________ (insert action or forbearance of the plaintiff); 4. that ______________________ (name of the defendant) knew or should have known that ________________________ (name of the plaintiff) would ___________________ (insert action or forbearance) after __________________ (name of the defendant) made the promise.[Adopted, effective November 1, 1991; as amended by Supreme Court Order No. , effective .]

Committee commentary. — This instruction was amended in 2011 to be consistent with New Mexico case law. See Strata Prod. Co. v. Mercury Exploration Co., 121 N.M. 622, 628, 916 P.2d 822, 828 (1996) (listing the elements of promissory estoppel as “(1) An actual promise must have been made which in fact induced the promisee’s action or forbearance; (2) The promisee’s reliance on the promise must have been reasonable; (3) The promisee’s action or forbearance must have amounted to a substantial change in position; (4) The promisee’s action or forbearance must have actually been foreseen or reasonably foreseeable to the promisor when making the promise; and (5) enforcement of the promise is required to prevent injustice); Magnolia Mountain Ltd. P’ship v. Ski Rio Partners, 2006-NMCA-027, ¶ 25, 139 N.M. 288, 131 P.3d 675 (same). The last element of the cause of action was omitted from the jury instruction because it is a question for the court. Even where a promise is not supported by traditional con-sideration, it may be enforceable against the promisor under the doctrine of “promissory estoppel.” See, e.g., Eavenson v. Lewis Means, Inc., 105 N.M. 161, 730 P.2d 464 (1986); Restatement (Second) of Contracts § 90. The New Mexico courts in adopting promissory estoppel have commented favorably on the Restate-ment version of the doctrine. See Eavenson, supra. “Promissory estoppel,” as a theory, should be distinguished from the doctrine of “equitable estoppel.” The latter doctrine may also be appropri-ate in a contracts situation. See, e.g., Capo v. Century Insurance Co., 94 N.M. 373, 610 P.2d 1202 (1980). Where the promise is enforced under promissory estoppel, the court may limit damages or the remedy, “as justice requires.” Restatement (Second) of Contracts § 90(1). Usually, damages under a “promissory estoppel” theory are limited to “reliance damages.” See J. A. Farnsworth, Contracts § 2.19 (1982). Some of the factors which may be considered in determining the extent to which the remedy should be limited or expanded are referred to in comment b to Restatement (Second) of Contracts § 90. Where the claim of promissory estoppel arises in the context of a charitable pledge, there is no need for any reliance on the part of the promisee in order to make the promise enforceable. See Restatement (Second) of Contracts § 90(2). Where an oral promise is sought to be enforced under promis-sory estoppel, the statute of frauds is not a defense. See Eavenson, supra; Restatement (Second) of Contracts § 139; J. A. Farnsworth, Contracts § 6.12 (1982). [Adopted by Supreme Court Order No. , effective .] ________________________________



advance opinionsfroM the neW Mexico supreMe court and court of appeals

http://www.nmcompcomm.us/


Opinion Number: 2011-NMSC-036

Topic Index:Negligence: Duty; Personal Injury; and Standard of Care

Remedies: Compensatory DamagesTorts: Failure to Give; Medical Malpractice;

and Wrongful Birth or Pregnancy

CYNTHIA AND PERFECTO PROVENCIO,Plaintiffs-Respondents,

versusSTEVEN WENRICH, D.O.,Defendant-Petitioner.

No. 32,344 (filed: August 17, 2011)

ORIGINAL PROCEEDING ON CERTIORARIFRANK KENNETH WILSON, District Judge

opinion

richard c. Bosson, Justice

{1} Since we issued Lovelace Medical Center v. Mendez, 111 N.M. 336, 805 P.2d 603 (1991), more than 20 years ago, this Court has not had an opportunity to clarify whether a doctor who negligently per-forms a tubal ligation procedure, but who then informs the patient of her continued fertility, may be sued for the future costs of raising a subsequently conceived child to the age of majority. We hold that those par-ticular damages are only available when a doctor has breached a duty to inform. Our Court of Appeals held otherwise, conclud-ing that notice of continued fertility, or lack thereof, was merely a factor for the jury to consider as questions of causation and comparative fault. Accordingly, we reverse theCourtofAppealsandaffirmthe district court’s dismissal of this action.BACKGROUND{2} On December 12, 2002, Defendant Dr. Steven Wenrich delivered Plaintiff Cyn-thia Provencio’s fourth child via caesarean

THOMAS A. SANDENAW, JR.CARALYN BANKS

SANDENAW LAW FIRM, P.C.Las Cruces, New Mexico

for Petitioner

JAMES P. LYLELAW OFFICES OF JAMES P. LYLE, P.C.

Albuquerque, New Mexicofor Respondents

section. Prior to surgery, Mrs. Provencio consented to Defendant contemporaneous-ly performing a tubal ligation procedure on her sole fallopian tube because she did not wish to have additional children. After completing the surgeries, Defendant sent a portion of what he believed was ligated fallopian tube to a laboratory for analysis. The resulting pathology report revealed that the tissue Defendant had ligated was ligament, not fallopian tube, and Plaintiff still could conceive children.{3}Mrs.Provencio’sfirst follow-upap-pointment with Defendant occurred on either December 18 or 19, 2002, several days after Mrs. Provencio was discharged from the hospital. At this appointment, De-fendant told Mrs. Provencio that the tubal ligation surgery was unsuccessful; that he had failed to “get it.” At the same appoint-ment, Defendant informed Mrs. Provencio that only a hysterosalpingogram (HSG) test would conclusively reveal the extent of her continued fertility. Defendant pro-vided Mrs. Provencio with a laboratory form for an HSG test.{4} For reasons that are not clear from

the record, Mrs. Provencio never returned to Defendant’s care after this initial ap-pointment. Mrs. Provencio did, however, complete an HSG test in November 2003, some eleven months after her last appoint-ment with Dr. Wenrich. The results of this testconfirmedthatMrs.Provencio’sfal-lopian tube remained open. Approximately fivemonthsafterreceivingtheHSGtestresults,Mrs.Provencioconceivedherfifthchild with her husband, Plaintiff Perfecto Provencio. Mrs. Provencio eventually gave birth to a normal, healthy child.{5} On December 12, 2005, Mr. and Mrs. ProvenciofiledsuitagainstDefendantforwrongful conception and battery. As to the wrongful conception claim, the only dam-ages for which Plaintiffs sought recovery were the costs associated with raising Mrs.Provencio’sfifthchildtotheageofmajority and punitive damages. Plaintiffs did not seek other damages for the costs of a second tubal ligation surgery or any other harm associated with the failed sterilization.{6} The case proceeded to trial where, at the close of Plaintiffs’ case in chief, Defendant moved the district court for judgment as a matter of law on each of Plaintiffs’ claims. See Rule 1-050(A) NMRA. In granting Defendant’s motion on the tort of wrongful conception, and particularly Plaintiffs’ claim for the costs ofraisingMrs.Provencio’sfifthchild,thedistrict court ruled that “the physician’s failure to timely inform the patient of the failed sterilization is an essential element” in wrongful conception. The district court observed that because “Plaintiffs were well aware of the failed sterilization,” and “were fully advised the sterilization had failed by the time the parties’ child was conceived,” they could not as a matter of law establish an essential element of their wrongful conception claim. Because of this, Mr. and Mrs. Provencio could not recover the costs of raising their child. In the alternative, the district court ruled that by providing Plaintiffs with information about the failed procedure, Defendant had broken the causal chain as a matter of law.{7} After making these rulings, the district court asked Plaintiffs if they wanted to proceed on a claim for different, albeit smaller, damages based on the negligently performed sterilization procedure alone, such as the costs of a second surgery, or



emotional suffering, but without recover-ing child-raising expenses as set forth in Mendez. Plaintiffs declined, and the district court entered judgment in favor of Defendant.{8} The Court of Appeals reversed, hold-ing that Mendez did not establish a dis-tinct tort of wrongful conception and that failure to inform was not a prerequisite to recovery for the costs of child-raising. Provencio v. Wenrich, 2010-NMCA-047, ¶ 9, 148 N.M. 799, 242 P.3d 366. The Court of Appeals concluded that a claim for wrongful conception is nothing more than a standard claim for medical negligence, albeit one that allows for special dam-ages. Id. ¶¶ 9-10. The Court of Appeals explained its reasoning:

Because a “wrongful concep-tion” action is nothing more than a normal medical malpractice action with a unique type of dam-ages, Plaintiffs, as in any medical malpractice action, “ha[ve] the burden of proving that: 1) [D]efendant owed [them] a duty rec-ognized by law, 2) [D]efendant failed to conform to the recog-nized standard of medical prac-tice in the community, and, 3) the actions complained of were the proximate cause of [P]laintiff[s’] injuries.” Schmidt v. St. Joseph’s Hosp., 105 N.M. 681, 683, 736 P.2d 135, 137 (Ct. App. 1987). Plaintiffs do not, however, have to prove that Defendant failed to disclose that the sterilization procedure was unsuccessful, and the fact that Defendant here undisputedly informed Plaintiffs that the sterilization was unsuc-cessful does not automatically bar Plaintiffs’ case from going to the jury.

Provencio, 2010-NMCA-047, ¶ 10.{9} The Court of Appeals also rejected the district court’s causation analysis, and correctly so. Id. ¶¶ 13-16. Because the independent intervening-cause doctrine does not apply to a plaintiff ’s own negligence, Defendant could not have interrupted the causal chain as a matter of law by disclosing to Mrs. Provencio that she was still fertile. Id. ¶ 13. Relying on general principles of New Mexico negligence law, the Court of Appeals reasoned that “the effect of the doctor’s disclosure” goes to the issues of causation and comparative fault, both within the province of the jury. Id. ¶ 11. Because “reasonable minds could differ on the

question of whether and to what extent [Defendant’s] actions and the actions of Plaintiffs caused the pregnancy,” the Court of Appeals determined that the case should have gone to the jury to determine liability and, if needed, apportion fault between the parties. Id. ¶ 12.{10} We granted Defendant’s petition for a writ of certiorari to clarify the scope and meaning of our Mendez opinion. Proven-cio v. Wenrich, 2010-NMCERT-006, 148 N.M. 584, 241 P.3d 182.DISCUSSION{11} As our resolution of this appeal depends on the applicability of Mendez, our seminal opinion in this area, we be-gin by reviewing that case. The facts in Mendez are straightforward. Mrs. Mendez underwent an unsuccessful tubal ligation procedure in which the doctor negligently ligated only one of her two open fallopian tubes. Mendez, 111 N.M. at 337-38, 805 P.2d at 604-05. Compounding his neg-ligence, the doctor never informed Mrs. Mendez that the surgery had failed. Id. Unaware of her continued fertility, Mrs. Mendez took no birth control measures and “within months of the surgery” con-ceived a healthy child. Id. at 338, 348, 805 P.2d at 605, 615. Among other claims, the Mendez plaintiffs sued for the cost of raising the unexpected child to the age of majority, a substantial sum. Id. at 348, 805 P.2d at 615. In resolving Mendez, this Court analyzed the nature of the plaintiffs’ various injuries and the damages that must be available, as a matter of sound policy, to compensate them for the full extent of those injuries. Id. at 341-54, 805 P.2d at 608-21.{12} In a seminal opinion, we held that New Mexico would join a minority of jurisdictions which recognize damages resulting from the birth of an unplanned, yet healthy child. Id. at 345, 349-50, 805 P.2dat612,616-17.Wespecificallyheldthat damages could include the costs of raising an unexpected child to the age of majority. Id. In so doing, we joined what was, and to this day remains, a small number of jurisdictions which permit full recovery for child-rearing costs with no offset tothedoctorforanybenefitsthatthe child might provide the parents over the course of their lives. Id. at 350-53, 805 P.2d at 617-20; see also Chaffee v. Seslar, 786 N.E.2d 705, 707 (Ind. 2003) (observing that New Mexico, California, Oregon, and Wisconsin are the only states that permit full recovery for child-rearing costs without a potential offset to the doc-tor).

{13} In the current case, Plaintiffs urge us to adopt the Court of Appeals opinion and hold that “in an ordinary medical malprac-tice claim stemming from a negligently performed sterilization procedure, the cost of raising a child may be recovered when a doctor’s negligence causes the birth of an unwanted child,” regardless of whether that doctor informs the patient about the failed procedure. Provencio, 2010-NMCA-047, ¶ 9. In other words, damages—the cost of raising an unex-pectedchild—wouldflowsolelyfromthenegligently performed tubal ligation, even if the doctor informed the patient about the unsuccessful procedure and the patient’s continued fertility. The jury would weigh the effect of the notice, or lack of it, when assessing causation. Under Plaintiffs’ reading of Mendez, it would fall on trial counsel to present factual arguments to the jury regarding notice and the nature of the patient’s subsequent conduct. If suf-ficientlypersuaded,thejurycouldawardthe costs of child-raising, or a portion thereof, notwithstanding the patient’s full knowledge and awareness of her potential for conception.{14} Naturally, Defendant disagrees. Ac-cording to Defendant, the issue here is not causation but duty. Defendant contends that the particular damages discussed in Mendez flow from thebreachof a dutyto fully and timely inform the patient of her continued fertility. Under Defen-dant’s reading of Mendez, once a doctor sufficiently notifies a patient that she remains fertile following an unsuccessful sterilization procedure, even when caused by medical negligence, liability for child-rearing costs, as opposed to lesser dam-ages like the cost of a second sterilization procedure, terminates as a matter of law.{15} As a preliminary matter, we agree with the Court of Appeals’ assessment that wrongful conception is not a distinct tort. It is well-established among courts and scholars that wrongful conception sounds in the law of medical negligence. See, e.g., Procanik v. Cillo, 478 A.2d 755, 760 (N.J. 1984) (“The terms ‘wrongful birth’ and ‘wrongful life’ are but shorthand phrases that describe the causes of action of parents and children when negligent medical treatment deprives parents of the option to terminate a pregnancy to avoid the birth of a defective child.”); W. Page Keeton et al., Prosser and Keaton on the Law of Torts § 55, at 370-73 (5th ed. 1984); Mark Strasser, Misconceptions and Wrongful Births: A Call for a Principled Jurisprudence, 31 Ariz. St. L.J. 161, 162


(1999) (“[T]he claim in each of these kinds of cases is that but for a professional’s negligence with respect to the mechanics of contraception, an unwanted conception would not have taken place.” (footnotes omitted)). Like any medical negligence action, the plaintiffs in a wrongful concep-tion claim “‘ha[ve] the burden of proving that: [(]1) [D]efendant owed [them] a duty recognized by law[,] [(]2) [D]efendant failed to conform to the recognized stan-dard of medical practice in the community [,] and, [(]3) the actions complained of were the proximate cause of [P]laintiff[s’] injuries.’” Provencio, 2010-NMCA-047, ¶ 10 (quoting Schmidt, 105 N.M. at 683, 736 P.2d at 137).{16} We are of the view, however, that this case is fundamentally about duty, which is for the court alone to define.Before the jury can resolve any factual matter,likecausation,thecourtmustfirstframe the relevant law. In a negligence ac-tion,thismeansthecourtmustfirstfindanactionabledutyofcareandthendefinethenature and scope of that duty. See Herrera v. Quality Pontiac, 2003-NMSC-018, ¶¶ 6-10, 134 N.M. 43, 73 P.3d 181. Neither party disputes that Defendant owed Plain-tiffs a duty of reasonable medical care. The parties, however, do dispute the nature and scope of that duty, and whether it is satis-fiedbythedoctorprovidingadequateandtimely notice to the patient about ongoing risks of an unsuccessful sterilization pro-cedure.{17} We recognize that Mendez does not clearly resolve the question of duty. In fact, Mendez appears susceptible to multiple interpretations, some of which support the Court of Appeals opinion and some of which do not. For example, we stated in Mendez that the tortious conduct was both “the doctor’s negligence in perform-ing the sterilization operation and failing to inform the mother of the unsuccessful outcome.” Mendez, 111 N.M. at 342, 805 P.2d at 609. Yet, at other points in the opinion, we appear to characterize the tor-tious conduct as the negligently performed surgical procedure alone without including the effect of a failure to warn. Id. at 342, 345, 805 P.2d at 609, 612.{18} We recognize that any ambigu-ity in Mendez is due to its concern with damages—whether New Mexico would

recognize the recovery of child-raising costs as a matter of policy—rather than a careful analysis of every aspect of the doctor’s duty. Id. at 342, 805 P.2d at 609 (stating that the “fundamental question on the merits issue in this appeal is a question as to [the] measure of damages”). At the time, at least twenty-nine jurisdictions had rejected these same child-rearing damages on policy grounds. Id. at 350 n.1, 805 P.2d at 617 n.1 (listing the jurisdictions that had dealt with the child-rearing damages issue); Lori McCamey Bencoe, Lovelace Medical Center v. Mendez: A New Ap-proach to Damages Awards in New Mex-ico, 23 N.M. L. Rev. 451, 452-54 (1993) (same). Unlike the current case, the facts in Mendez did not require a close analysis of duty. The doctor in Mendez had made no effort to notify his patient after the unsuccessful surgery, and Mrs. Mendez was not aware of her condition. We did not address the consequences, if any, if Mrs. Mendez had been made aware. Because Mendez does not provide clear guidance on this issue, we turn to legal principles that underlie medical negligence claims when based on wrongful birth and wrong-ful conception.{19} As we previously mentioned, wrongful birth and wrongful conception are negligence actions, yet these claims are unlike other, more traditional claims for pre-natal medical malpractice. In the more typical prenatal medical negligence case, it is the child or the child’s repre-sentative who asserts a claim for damages against a health-care provider, generally a doctor, for the child’s own injuries. See generally Siemieniec v. Lutheran Gen. Hosp., 512 N.E.2d 691, 697-98 (Ill. 1987). Commonly, the child claims that the doc-tor’s negligence during pregnancy or at childbirth caused the child, who otherwise would have been born healthy, to be born with some defect or disease. See Clark v. Children’s Mem. Hosp., No. 108656, 2011 WL 1733532, at **12-13 (Ill. May 6, 2011). While the parents of the child might have derivative claims, such as loss of consortium, the essence of a prenatal negligence action is injury to the child itself.{20} At the other end of the negligence spectrum is wrongful birth, which is a prenatal medical negligence claim based

on injuries suffered by the parents, not the child. In jurisdictions recognizing these claims, wrongful birth is generally brought “by the parents of a child born with birth defects alleging that due to negligent medical advice or testing they were precluded from making an informed decision about whether to conceive a potentially handicapped child, or, in the event of pregnancy, to terminate it.” Chafee, 786 N.E.2d at 710 n.3 (Rucker, J., dissenting). The nature of the parent’s injury “is not that the defendant caused the child’s condition, but that the defendant deprived the parents of the opportunity to make an informed decision.” Clark, 2011 WL 1733532, at **12-13.{21} Wrongful birth is appropriately characterized as a claim-based failure to diagnose or failure to advise the parents. The duty owed is part of the doctor’s obligation to provide adequate care so that the parents can make an informed decision about the risks of pregnancy and childbirth; adequate care includes adequate notice. See Keeton, supra § 55, at 370 (“The defendants in [a wrongful birth case] are typically doctors charged with negligence . . . in failing to diagnose or inform the parents that the child might be born deformed—because of a disease contracted by the mother or a genetic condition in one of the parents—in time to permit the termination [or avoidance] of the pregnancy.”).1 {22} Wrongful conception is a closely related medical negligence claim that involves the birth of a healthy, but un-planned, child. See Cowe v. Forum Group, Inc., 575 N.E.2d 630, 633 (Ind. 1991) (stating that wrongful conception “refers to a claim for damages sustained by the parents of an unexpected child alleging that the conception of the child resulted from negligent sterilization procedures or a defective contraceptive product”). Likewrongfulbirth,parentsfilewrong-ful conception suits on their own behalf, alleging injuries that they alone have suf-fered, including the costs associated with the pregnancy and the costs of raising an unexpected child. See Phillips v. United States, 508 F. Supp. 544, 545 n.1 (D.S.C. 1981). Both Mendez and the Provencio’s case present claims for wrongful concep-tion.

1A more controversial cause of action is wrongful life, which is a negligence claim brought by a disabled child or that child’s representative “for the harm of being born deformed.” Keeton, supra § 55, at 370. “By and large, the child’s wrongful life action mirrors that of the parents’ wrongful birth claim, with one major exception: it generally is rejected by the courts.” Donald L. DeVries, Jr., and Alan M. Rifkin, Wrongful Life, Wrongful Birth, and Wrongful Pregnancy: Judicial Divergence in the Birth-Related Torts, 20 Forum 207 (1985).


{23} There is a dearth of case law dis-cussing the nature and scope of a doc-tor’s duty in a wrongful conception case. Like our opinion in Mendez, most of the reported decisions in this area focus not on the nature of the tortious conduct, but on whether the birth of a healthy child is a compensable injury and whether child-raising costs are too speculative or con-trary to public policy. See generally David Kerrane, Part Eight: Parenting: Damages for Wrongful Pregnancy, 11 J. Contemp. Legal Issues 467 (Nov. 2000) (discuss-ing the treatment of wrongful conception cases in various state courts); Podewils, supra (same). Rather than relying on out-of-statecases,whichwedonotfindhelp-ful in an area of law where our precedent has already chosen a different course, the question of duty is best answered by re-sorting to general principles, including the nature of the doctor’s tortious conduct, and our medical negligence jury instructions. “The . . . scope of a defendant’s duty of care is a legal question that depends on the nature of the . . . activity in question, the parties’ general relationship to the activity, and public policy considerations.” Edward C. v. City of Albuquerque, 2010-NMSC-043, ¶ 14, 148 N.M. 646, 241 P.3d 1086. The question of policy is “answered by reference to legal precedent, statutes, and other principles of law.” Id. ¶ 18. We turn once again to Mendez.{24} In Mendez,we identified two re-lated injuries suffered by the parents. 111 N.M. at 345, 805P.2d at 612.Thefirstwas an injury to the parental “interest in thefinancialsecurityoftheirfamily.”Id. The second was an injury to “the parents’ interest in limiting the size of their family.” Id. The two may often overlap. An injury totheparentalinterestinfinancialsecurityoccurs when parents are forced to take ononeoflife’smostsignificantfinancialburdens, raising a healthy child, without an opportunity to make an informed decision on the matter. Judge Alarid recognized this principle in Mendez, when, speaking for the Court of Appeals, he observed that “children need to be fed, clothed, housed, educated, and provided with medical care and other necessities. [Many] people . . . decide whether or not to become parents, or how many children to have, based in part on their financial resources.” 111 N.M. at 352, 805 P.2d at 619. Similarly, an injury to the parental interest in limit-ing the size of one’s family occurs when parents are deprived of an opportunity to make an informed, family-planning deci-sion. Id. at 612-13, 805 P.2d at 345-46. The

notionof a compensable injuryflowingfrom a lack of medical information was critical to the Court of Appeals majority opinion in Mendez, which our Court in-cluded as an appendix and took great pains to adopt. 111 N.M. at 338, 805 P.2d at 605(“Onthemerits,wefindourselvesinsubstantial agreement with Judge Alarid’s opinion . . . .”).{25} The Court of Appeals opinion, again specifically embraced by thisCourt inMendez, also discussed several medical negligence jury instructions. 111 N.M. at 349, 805 P.2d at 616. These instruc-tions help to place wrongful conception within the larger universe of medical negligence. The Court described a doc-tor’s general duty as a duty “to possess and apply the knowledge and to use the skill and care ordinarily used by reason-ablywell-qualified doctors in the samefieldofmedicinepracticingundersimilarcircumstances.” Id. at 349, 805 P.2d at 616 (citing UJI 13-1101 NMRA). The Court then noted that this same duty includes “a duty to provide the patient with certain information.” Id. (citing UJI 13-1104(B) NMRA). The Court also stated that “[a] doctor who breaches this duty is liable for the harm that results to the patient if a reasonably prudent person would have acted upon the information to avoid the harm,” making reference to our current instruction. Id. at 349, 805 P.2d at 616 (citing UJI 13-1116(B) NMRA).{26} These jury instructions relied upon in Mendez are relevant only in failure-to-informcases.Thesespecificjuryinstruc-tions, which were cited with approval by our Court of Appeals in Mendez, support a conclusion that the duty owed by a doc-tor in a wrongful conception case is the duty to inform following an unsuccessful sterilization procedure. 111 N.M. at 347, 805 P.2d at 614 (Ransom J., specially concurring) (“Mrs. Mendez was injured the moment the doctor reached his duty to exercise required care and left her with an unligated tube in the sterilization opera-tion, and she was further injured when he failed to inform her of the unsuccessful outcome.”).{27} In describing the differences be-tween prenatal medical negligence, wrongful birth, and wrongful concep-tion, we observe that a doctor may owe multiple duties of care when treating a particular patient. For example, a doctor owes a general duty to provide competent care in treating a patient’s medical condi-tion. See, e.g., Mireles v. Broderick, 117 N.M. 445, 447, 872 P.2d 863, 865 (1994)

(patient alleged that an anesthesiologist’s negligent care during surgery caused nerve damage in her arm). In the pregnancy and childbirth context, this duty might include competently delivering a baby or performing a sterilization procedure. A doctor may also owe the same patient a duty to properly diagnose his relevant medical conditions. See, e.g., Gonzales v. Sansoy, 102 N.M. 136, 137, 692 P.2d 522, 523 (1984) (patient alleged that a doctor failed to make a timely diagnosis of appendicitis). In the pregnancy and child-birth context, this duty to diagnose might include recognizing certain abnormali-ties in the fetus or determining whether a sterilization procedure was successfully performed. At the same time, a doctor may owe yet another duty to inform the patient of any pertinent medical information. See Alberts v. Schultz, 1999-NMSC-015, ¶ 17, 126 N.M. 807, 975 P.2d 1279 (not-ing that failure to inform is a “traditional theor[y] of recovery in New Mexico tort law”). This duty would certainly include an obligation to inform a patient that a sterilization procedure was unsuccessful, regardless of the cause, when the doctor reasonably knows or should know the results of a failed procedure. These vari-ous duties are not mutually exclusive, and depending on the context of the treatment sought, they may exist concurrently.{28} As we previously stated, New Mexi-co remains one of very few jurisdictions to permit complete recovery for the costs of raising a child to the age of majority in a wrongful conception case. Because child-rearing costs will normally far exceed other damages associated with a failed sterilization procedure, such as the costs of a second procedure and pain and suffering, courts should take great care when shifting the full weight of child-rearing expenses onto someone other than the parents. As a matter of sound policy, we think that the extraordinary damages of raising a child to the age of majority should be reserved for extraordinary cases like Mendez.{29} Mendez helps explain why this extraordinary remedy should only be available in duty-to-inform cases. In Mendez, the future costs of raising the unexpected child were necessarily going to fall on either the doctor or the parents. Between the negligent doctor who failed to disclose information about the unsuc-cessful sterilization procedure, and the unsuspecting parents who mistakenly believed they were no longer fertile, it was fair to require the doctor to pay for the subsequent pregnancy and any children


resulting from that pregnancy. It was the doctor in Mendez, not the patient, who controlled the relevant medical informa-tion. By conforming his conduct to the relevant standard of care and fulfillinghis duty to inform, the doctor in Mendez could have empowered the parents to take whatever measures they deemed ap-propriate to avoid pregnancy. It was the doctor’s failure to do so that placed the parents in a position they could not be reasonably expected to control. Follow-ing this reasoning, we think the Mendez courtintendedtodefinetheduty,thoughsomewhat obscured, to include an obliga-tion of notice. Conversely, if the doctor had provided notice to Mr. and Mrs. Mendez, we believe the Court would not have authorized the recovery of future, child-rearing costs.{30} Turning to the present case, Mrs. Provencio, unlike Mrs. Mendez, was aware that she remained fertile well be-fore conceiving her next child, whether the source of that knowledge was Dr. Wenrich’sambiguouswarningatthefirstpost-operative conference or the results of the later-completed HSG test. In con-trast to Mendez, Mr. and Mrs. Provencio possessed information that they could have used to avoid conception, assuming this was their goal. As a matter of sound policy, we believe that shifting the costs ofraisingPlaintiffs’fifthchildontoDr.Wenrich is not commensurate with the duty that he breached nor with the harm that such a breach could have caused.{31} One particular hypothetical il-lustrates the soundness of this policy. If we were to allow Mendez-type recovery when parents are aware of their continued fertility, then a jury could award child-raising costs not only for the resulting child, but for all children born thereafter. Theoretically, a doctor’s liability for a poorly-performed sterilization procedure could continue for the reproductive life of that patient, irrespective of whether that patient knew or should have known of her continued fertility, and irrespective of whether the doctor’s post-surgical

conduct had deprived that patient of a reasonable opportunity to avoid concep-tion. {32} This result would be absurd and unjust. It would also invite unnecessary confusion, since the jury’s attention would not be directed towards a doctor’s post-surgical conduct and whether these actions deprived the parents of the opportunity to make an informed choice about pursu-ing additional children. Under Plaintiffs’ theory, doctors would have no incentive to inform their patients about the results of a failed procedure since providing notice would not terminate liability in a future lawsuit for medical negligence based on the failed surgery. As a matter of policy, our rulings should encourage doctors to act responsibly and notify their patients about surgical results.{33} Accordingly, we hold that, follow-ing a failed sterilization procedure, dam-ages related to an additional pregnancy, along with the costs of raising any subse-quent children to the age of majority, are only available when plaintiffs can prove a breach of the duty to inform. In so doing, we reject the position advocated by the CourtofAppeals.Wefindthatdamagesrelating solely to a negligently performed sterilization are those that would normally flow from a failed surgery, such as thecost of a second sterilization procedure, any physical or emotional harm that may result from the initial or subsequent ster-ilization, lost wages, the reasonable costs of birth control until a second procedure is feasible, and so forth.{34} Because the timeliness and ad-equacy of a doctor’s warning are questions of fact that go to the element of breach, we see no reason to discuss in any detail the components of a successful warning following a failed sterilization procedure. See Herrera, 2003-NMSC-018, ¶ 33 (“The finder of fact must determine whether Defendant breached the duty of ordinary care . . . .”). Each case will contain its own unique set of circumstances, and our case law commits this important issue to the jury. See id. (noting that the issue of

whetheraspecificdutyhasbeenbreached“‘is a factual determination or, perhaps, a mixed determination of law and fact, involving as it does the application of precepts of duty to the historical facts as foundbythefactfinder’”(quotingBober v. N.M. State Fair, 111 N.M. 644, 650, 808 P.2d 614, 620 (1991))). We note, however, that the duty to inform requires doctors, at a minimum, to provide patients with adequate and timely information about the failed sterilization procedure and the patient’s continued fertility. See UJI 13-1104(B)-(C); 13-1116(B). Any suc-cessful warning must include information that is objectively understandable, deliv-ered in a manner that is reasonably likely to convey the desired information to the patient in a meaningful way, keeping in mind that most patients are not medically trained and need help understanding the fullramificationsofprofessionaljargon.{35} In the current case, we can easily resolve the notice question. Despite our misgivings about the adequacy of De-fendant’s post-surgical communications to Mrs. Provencio, the fact remains that Plaintiff understood she was still fertile. She admitted as much at trial; there is no dispute on this question. The nature of Mrs. Provencio’s admission is such that neither she nor her husband could have suffered the informational injury that lies at the heart of a claim for wrongful con-ception. Accordingly, the trial court was correct in granting Defendant’s motion for judgment as a matter of law. See Torres v. El Paso Elec. Co., 1999-NMSC-029, ¶ 26, 127 N.M. 729, 987 P.2d 386, overruled on other grounds by Herrera, 2003-NMSC-018.CONCLUSION{36} We reverse the Court of Appeals.{37} IT IS SO ORDERED. RICHARD C. BOSSON,

Justice

WE CONCUR:CHARLES W. DANIELS, Chief JusticePATRICIO M. SERNA, JusticePETRA JIMENEZ MAES, JusticeEDWARD L. CHÁVEZ, Justice

SEPTEMBER

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2 • CLE At-A-Glance www.nmbarcle.org

5.0 G 2.0 EP2011 HEALTH LAW SYMPOSIUM:Healthcare Fraud and Abuse RegulationFriday, October 7, 2011 • State Bar Center, Albuquerquer Standard Fee $229 r Health Law Section Member, Government, Legal Services Attorney, Paralegal $199Co-Sponsor: SBNM Health Law Section

8:00 a.m. Registration8:30 a.m. Federal Enforcement of Healthcare Fraud Regulations

under PPACA David Douglass, Esq., Shook, Hardy & Bacon, Washington, D.C.9:30 a.m. Recent Federal Enforcement Actions Thomas Dean, Esq., V.P. Legal and Business Development,

San Juan Regional Medical Center10:00 a.m. Break 10:15 a.m. Fraud & Abuse Enforcement in New Mexico David Johnson, Esq., Bannerman and Johnson, P.A., Moderator Brian Davis, Esq., Davis and Gilchrist, P.C. David Douglass, Esq., Shook, Hardy & Bacon, Washington, D.C. Howard Thomas, Esq., Assistant U.S. Attorney,

Office of the US Attorney12:15 p.m. Lunch (provided at the State Bar Center)

1:00 p.m. Obtaining Medical Records Pursuant to a Subpoena: Relevant Federal and State Regulations

Pippa Amick, Esq., Director of Corporate Compliance, Presbyterian Medical Services

Caroline Blankenship, Esq., Blankenship Health Law, LLC Sophia S. Collaros, JD, MA, Privacy Officer, University of New Mexico2:30 p.m. Break2:45 p.m. Ethical Considerations in Formal & Informal Internal

Investigations Rebecca Avitia, Assoc., Bannerman & Johnson Molly Schmidt Nowara, Freedman Boyd Hollander Goldberg Ives

& Duncan PA3:45 p.m. Development of Professional Standards in Medicine Anne Simpson, M.D., Rust Professor and Director of the Institute

for Ethics, University of New Mexico School of Medicine4:45 p.m. Adjourn and Reception

2011 EMPLOYMENT AND LABOR LAW INSTITUTE 1.0 EPFriday, October 7, 2011 • State Bar Center, Albuquerquer Standard Fee $209 r Employment and Labor Law Section Member, Government, Legal Services Attorney, Paralegal $179

Co-sponsor: SBNM Employment and Labor Law Section

5.0 G

8:00 a.m. Registration8:30 a.m. Recent Developments and Hot Topics Involving the EEOC P. David Lopez, Esq., EEOC General Counsel, Washington, D.C.10:00 a.m. Break10:15 a.m. Federal Employment Case Law and Regulatory Update Anne Noel Occhialino, Esq., EEOC, Washington, D.C.11:15 a.m. State Employment Law Update Victor Montoya, Esq., Jackson Lewis, Albuquerque12:00 p.m. Lunch (provided at the State Bar Center) 1:15 p.m. Current Trends Involving Mediation Christopher R. Venegas, EEOC, Albuquerque Barbara Davis, New Mexico Human Rights Bureau, Santa Fe

2:00 p.m. Update on Labor Law Danny Jarrett, Esq., Jackson Lewis, Albuquerque David Garza, Albuquerque Resident Officer and Deputy Regional

Attorney, Region 28, National Labor Relations Board3:00 p.m. Break3:15 p.m. E-Discovery: Ethical Considerations and Practice Pointers Hon. James Browning, U.S. District Court for the

District of New Mexico, Albuquerque 4:15 p.m. Adjourn

also available viaLIVE WEBCAST

TRIAL PRACTICE CLE: Ethics and Professionalism from a Judge’s Perspective

2.0 EP

Thursday, October 13, 2011 • State Bar Center, Albuquerquer Standard Fee $79 r Trial Practice Section Member, Government, Legal Services Attorney, Paralegal $69

Co-Sponsor: SBNM Trial Practice Section

Moderator: Joseph L. Romero, Esq., Joseph L. Romero Trial Lawyer LLCSection Chair: Alexander K. Russell, Esq., Russell Law Firm PC

9:30 a.m. Registration

10:00 a.m. Ethics and Professionalism from a Judge’s Perspective (2.0 EP) Hon. Henry A. Alaniz, Bernalillo County Metropolitan Court Hon. Beatrice J. Brickhouse, 2nd Judicial District Court Hon. Timothy L. Garcia, NM Court of Appeals Hon. Denise Barela Shepherd, 2nd Judicial District Court Hon. Michael E. Vigil, NM Court of Appeals

Noon Adjourn and Lunch (provided at the State Bar Center)



www.nmbarcle.org CLE At-A-Glance • 3

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FRIDAY, OCTOBER 148:00 a.m. Registration8:25 a.m. Introductory Remarks and Course Overview Allison P. Pieroni, Esq., Atkinson & Kelsey PA, Chair,

Family Law Section8:30 a.m. Understanding the Themes Running through Late Life

Divorce, Divorce Processes Best Suited to the Older Client, Less Time to Recover Financially, Income Generation, Age-Related Characteristics of Value

Janice L. Green, Esq., Farris & Green, Austin, Texas10:15 a.m. Break10:30 a.m. Understanding the Themes (continued) Janice Green, Esq.12:00 p.m. Lunch (provided at the State Bar Center) Family Law Section Annual Meeting1:00 p.m. Medicaid, Medicare, Affordable Care Act Nell Graham Sale, Esq., Pregenzer Baysinger Wideman & Sale PC3:00 p.m. Break3:15 p.m. Panel Discussion: Boomer Concerns- The Health Care Gap,

Long Term Care, Financial Concerns Later in Life Mary Ann R. Baker-Randall, Esq., Atkinson & Kelsey PA Lori Beverley, President, LMN Associates, Inc. Jennifer Finlayson, LTCP, CSA, Vice President, Hank Racette, Inc.5:00 p.m. Adjourn

SATURDAY, October 158:30 a.m. Registration9:00 a.m. The Aging Brain Dr. William Apfeldorf, MD, PhD, Professor and

Vice-Chairman for Clinical Services, UNM Dept of Psychiatry Executive Medical Director, University Psychiatric Center

10:00 a.m. Role Adult Children Play, Prenuptial Agreements and Postnuptial Agreements

Janice Green, Esq.11:00 a.m. Break11:15 a.m. Estate Planning Do’s and Don’ts for Divorce Lawyers Vickie Wilcox, Esq., Wilcox Law Firm PC12:15 p.m. Lunch (provided at the State Bar Center)12:45 p.m. Ethics Professionalism Panel Lynn Perls, Attorney at Law, Law Office of Lynn Perls Richard Stoops, Esq., Richard D. Stoops Attorney at Law Hon. Abigail Aragon, 4th Judicial District Court Janice Green, Esq.2:45 p.m. Adjourn

27th ANNUAL FAMILY LAW INSTITUTEWhen Boomers Divorce: Special Problems In Divorce After 50Friday-Saturday, October 14-15, 2011 • State Bar Center, Albuquerquer Standard Fee $349 r Family Law Section Member, Government, Legal Services Attorney, Paralegal $319Co-Sponsor: SBNM Family Law Section

LAS CRUCES VIDEO REPLAYS 3rd Judicial District Court – Jury Assembly Rm 1, 201 W. Picacho Ave., Las Cruces, NM

OCTOBER 3

Skeptically Determining the Limits of Expert Testimony and Evidence, Part 24.7 G, 2.0 EP • 9:30 a.m. – 5:00 p.m.r $219

OCTOBER 4

Eighth Annual Elder Law Spring Seminar – Residential Options: Your Place or Mine?3.5 G • 8:15 a.m. – 11:45 a.m.r $119

2011 Ethics/Professionalism: Conquering the Pitfalls of Our Profession for a Healthy and Successful Career2.0 EP• 1:00 p.m. – 3:00 p.m.r $79

8:00 a.m. Registration8:15 a.m. Introductory Remarks Larry Maxwell, Esq., State Purchasing Agent and Director,

New Mexico State Purchasing Division8:20 a.m. State of the Procurement Code Overview: Ross Boom, Deputy Director,

New Mexico State Purchasing Division Update: Recent Case Law and Legislation Steve Ross, Esq., Santa Fe County Attorney9:20 a.m. Procurement Codes: Federal, State, and Local: Application

and Impact on State and Local Purchasing Robert Telles, Purchasing Manager, City of Las Cruces10:10 a.m. Break

10:25 a.m. Hot Spots in Procurement Moderator: Larry Maxwell, Esq., State Purchasing Agent and

Director, New Mexico State Purchasing Division IPRA: Mona Valicenti, Esq., Assistant Attorney General e-Procurement: Ross Boom, Deputy Director,

New Mexico State Purchasing Division IT Procurement: Gerrie Becker, IT/RFP Buying Supervisor,

New Mexico State Purchasing Division Protests: Kathy Sanchez, Executive Procurement Officer

Supervisor, New Mexico State Purchasing Division Q & A11:35 a.m. Ethics in Procurement (1.0 EP) Carolyn Wolf, Esq., Former General Counsel, New Mexico

Taxation and Revenue12:35 p.m. Adjourn and Public Law Section Meeting

CRAIG OTHMER MEMORIAL PROCUREMENT CODE INSTITUTEFriday, October 21, 2011• State Personnel Office Auditorium, 2600 Cerrillos Road, Santa Fe r Standard Fee $149 r Public Law Section Member, Government, Legal Services Attorney, Paralegal $129

Co-Sponsor: Public Law Section and NM Public Procurement AssociationModerator: Sharon T. Shaheen, Esq., Montgomery & Andrews, P.A.

3.0 G 1.0 EP



7.2 G


PLEASE NOTE:This program will provide the Veteran Affairs certification required to represent veterans in front of the VA.

Attorneys who are signing up for the Veteran Affairs Certification or Recertification: If not accredited, accreditation needs to be confirmed with Veteran Affairs prior to attending the seminar.

Any attorney who discusses Veteran Affairs benefits with clients must be accredited through the VA. Attorney accreditation requires the following: (1) application (VA Form 21a) submitted to the Department of Veterans Affairs – Office of General Counsel; (2) self-certification regarding admission information to practice before any other court, bar, or State or Federal agency; and (3) determination of character and fitness (absent credible information to the contrary, the General Counsel will presume an attorney’s character and fitness to practice before the VA if an attorney’s membership is in good standing with the state bar). Within 12 months of initial accreditation, an attorney must complete a CLE course approved by the Bar for a minimum of three hours. Attorneys shall certify completion of the initial CLE requirement and submit the relevant information to the Office of General Counsel. The full text can be found at 38 C.F.R. §14.629(b) (1).

In order for this course to qualify for the 3.0 CLE requirement, you must have filed the necessary application and self-certification and have received approval from Veteran Affairs before the seminar. Be sure to apply immediately at www.va.gov/vaforms/form_detail.asp?FormNo=21a.

4.5 GIMMIGRATION LAW CLE 1.0 EPFriday, October 21, 2011 • State Bar Center, Albuquerquer Standard Fee $189 r Immigration Law Section Member, Government, Legal Services Attorney, Paralegal $159

Co-Sponsor: SBNM Immigration Law Section

8:30 a.m. Registration9:00 a.m. Welcome to the Immigration Jungle: Agencies and

Sources of Law Rebecca Kitson, Esq., Lawit & Kitson10:00 a.m. Break 10:15 a.m. Coming to America: Visas and Citizenship Iris Calderon, Esq., Calderon Law Firm11:15 a.m. Humanitarian Paths: VAWA, Victims of Violent Crime and

Special Immigrant Juveniles Mary Ann Romero, Esq., Kretz & Romero Caterina Kretz, Esq., Kretz & Romero

12:15 p.m. Lunch (provided at the State Bar Center)1:30 p.m. Ways to Get into Trouble: Violations in Immigration Law Brooke Nowak-Neely, Esq., Lawit & Kitson Rebecca Kitson, Esq.3:00 p.m. Break3:15 p.m. Representing the Foreign National:

Issues in Professionalism (1.0 EP) Panelists TBA4:15 p.m. Adjourn and Reception (State Bar Center Lobby)


8:00 a.m. Registration8:30 a.m. Changes in the Uniform Probate Code and Other Changes

Affecting Elder Law Attorneys Recent Case Law Update Legislation that Did Not Pass that May Be Reintroduced Fletcher Catron, Esq., Catron Catron & Pottow PA10:00 a.m. Break10:15 a.m. Uniform Adult Guardianship and Protective Proceedings

Jurisdiction Act Gaelle McConnell, Esq., Attorney at Law11:15 a.m. Guardianship and Conservatorship in Practice Laurie Hedrich, Esq., Moderator, Laurie A. Hedrich PA Hon. Shannon Bacon, 2nd Judicial District Court Gaelle McConnell, Esq., Attorney at Law Kevin Hammar, Esq., Aldridge, Grammer & Hammar, PA Richard Stoops, Esq., Richard D. Stoops Attorney at Law12:15 p.m. Lunch (provided at the State Bar Center)

1:00 p.m. VA Accreditation Victoria L. Collier, Esq., Collier & St Clair, LLP, Decatur, Georgia

Overview of VA and Applicable Laws Attorney Fees Veterans Health Administration Service Connected Benefits3:00 p.m. Break3:15 p.m. VA Accreditation (continued) Victoria L. Collier, Esq

Non-Service Connected Benefits Application Process Appeals Resources Q&A and Hot topics5:00 p.m. Adjourn

2011 FALL ELDER LAW INSTITUTE:VA Accreditation and What Practitioners Need to Know about Changes to the Probate Code and GuardianshipsFriday, October 28, 2011 • State Bar Center, Albuquerquer Standard Fee $229 r Elder Law Section Member, Government, Legal Services Attorney, Paralegal $199Co-Sponsor: SBNM Elder Law Section

http://www.va.gov/vaforms/form_detail.asp?FormNo=21a



3.5 GFall Indian Law Section CLE:Indian Preference in Employment and ContractingThursday, November 3, 2011 • State Bar Center, Albuquerquer Standard Fee $129 r Indian Law Section Member, Government, Legal Services Attorney, Paralegal $109

Co-Sponsor: SBNM Indian Law Section

8:00 a.m. Registration8:30 a.m. Introductory Remarks Rodina Cave, Esq., Indian Law Section Chair, Sutin, Thayer & Browne The Law on Indian Preference Harold Monteau, Esq., Visiting Professor,

Southwest Indian Law Clinic, UNM School of Law9:30 a.m. Indian Preference in Employment Panel Moderator: Christina West, Esq., Indian Law Section

Board, Sutin, Thayer & Browne Jim Fitting, Esq., Luebben, Johnson & Barnhouse David Jordan, Esq., Law Offices of David R. Jordan Larry Ketcher, Council for Tribal Employment Rights, Board Chair John LaVelle, Esq., Professor,

Director of the Indian Law Program, UNM School of Law

10:45 a.m. Indian Preference in Contracting Panel Moderator: Barbara Creel, Esq., Professor, UNM School of Law Harold Monteau, Esq., Visiting Professor,

Southwest Indian Law Clinic, UNM School of Law Leta Hollon, Esq., Attorney-Advisor, Office of the Solicitor,

U.S. Department of the Interior, Southwest Region Victoria Lee, Department Manager, Business Regulatory

Department, Navajo Nation, Division of Economic Development Larry Ketcher, Council for Tribal Employment Rights, Board Chair Noon Adjourn and Lunch (traditional Native American food

provided at the State Bar Center)1:00 p.m. Indian Law Section Annual Meeting followed by Indian Law

Section Board of Directors Meeting


5.0 G2011 BUSINESS LAW INSTITUTE:Business Law Strategies for Troubled Times

1.0 EP

Friday, November 4, 2011 • State Bar Center, Albuquerquer Standard Fee $209 r Business Section Member, Government, Legal Services Attorney, Paralegal $179

Co-Sponsor: SBNM Business Section

8:30 a.m. Registration9:00 a.m. Asset Protection and Integrated Estate Planning:

The State of the Art for 2012 Barry S. Engel, Esq., Engel & Reiman PC, Denver, Colorado Overview of Basic Concepts Overview of Planning Tools Domestic vs Foreign Asset Protection Trusts –

An Analysis of Principles and Statutory Provisions Update on Recent Case Law and Result of Other Challenges Tax Issues Trust Law Meets Contempt Law – Now What? 11:00 am Break11:15 a.m. Bankruptcy George M. Moore, Esq., Moore Berkson & Gandarilla PC

12:30 p.m. Lunch (provided at the State Bar Center) Business Meeting1:30 p.m. Business Triage and Bank Negotiations Gordon S. Little, Esq., Gordon S. Little, Ltd.2:45 p.m. Break3:00pm Ethics (1.0 EP) Bruce E. Castle and James T. Reist, Esq.,

Tax Estate & Business Law Ltd4:00 pm Q & A Presenters TBA4:30 p.m. Adjourn and Reception with

BLS Business Lawyer of the Year Presentation State Bar Lobby


NATIONAL SERIESNational Teleseminars • 11 a.m. MDT

Must register for teleseminars online at www.nmbarcle.org

OCTOBER 4 Estate PlanningFixing Broken Trusts Trusts can fail. They can become impractical – too costly to operate or fail to achieve their purpose. Their assets may decline or be lost entirely. Tax laws may dramatically change their tax efficiency. These and a host of other circumstances giving rise to the creation of the trust in the first instance may change substantially. This program will provide you with a real-world guide restructuring trusts for financial, administrative and tax purposes. The program will also discuss terminating a trust when all else fails. 1.0 General CLE Credit r $67

6 Real EstateEnvironmental Liability in Real Estate TransactionsFederal and state law “tags” various parties in a property’s chain of title for environmental liabilities. Liability may also be shared the financier or lenders in a property transaction. In many instances those economic liabilities may fatally undermine the expected financial benefits of the deal or at least substantially complicate the deal. This program will discuss sources of potential liability, essential environmental liability for estate and transactional counsel, allocating the risk of loss in the deal’s underlying documentation, and more. 1.0 General CLE Credit r $67




8:30 a.m. Registration9:00 a.m. Introductory Remarks Supreme Court Justice Edward Chavez9:10 a.m. Where Mediators Get Into Ethical Trouble: How an

Increasingly Sophisticated Market Demands Advanced Skills and Attention to Codes of Conduct (1.0 EP)

10:15 a.m. Break10:30 a.m. Moving Beyond an Evaluative or Facilitative “Style” of

Practice: Understanding the Right Approach in the Right Case, at the Right Time, in the Right Way, with the Right People

Noon Lunch (provided at the State Bar Center)

1:00 p.m. Moving People Forward: Resistance and Impasse Strategies and Ethical Dilemmas That May Arise (1.5 EP)

2:30 p.m. Break2:45 p.m. The Art and Science of Asking Questions How Questions Can Be Used for Much, Much More than

Simply Gaining Information4:00 p.m. The Strategic Use of Separate and Joint Sessions:

It’s More Than A Matter of “Style”4:30 p.m. Q & A Discussion5:00 p.m. Adjourn

8:30 a.m. Registration9:00 a.m. Pre filing Issues and Getting Filed Hon. Robert H. Jacobvitz, US Bankruptcy Court,

District of New Mexico George Moore, Esq., Moore Berkson & Gandarilla PC10:00 a.m. Break10:15 am First Day Matters George Moore, Esq. and Hon. Robert H. Jacobvitz11:15 a.m. Deadlines and Lead Time to Meet Them Hon. Robert H. Jacobvitz and George Moore, Esq.11:30 a.m. Reacting to Creditors’ Actions Hon. Robert H. Jacobvitz and George Moore, Esq.

12:15 p.m. Lunch (provided at the State Bar Center)1:00 p.m. Plan and Disclosure Statements, and Getting Confirmed George Moore, Esq. and Hon. Robert H. Jacobvitz 3:00 p.m. Break3:15 p.m. Claims Issues Hon. Robert H. Jacobvitz and George Moore, Esq.4:00 pm Post-Confirmation Matters George Moore, Esq. and Hon. Robert H. Jacobvitz 4:30 p.m. Odds and Ends, Reporting, Injunctions Hon. Robert H. Jacobvitz and George Moore, Esq.5:00 p.m. Adjourn

8:30 a.m. Registration9:00 a.m. Vehicle Forfeiture and DWI Stanley Harada, Esq., Administrative Hearing Officer,

City of Albuquerque10:00 a.m. Break10:15 am Immigration Consequences Associated with DWI Scott Aaron, Esq., Partner and Owner, Aaron and Aaron, P.C.

11:15 a.m. The MVD License Revocation Hearing Process Irma Pluemer, Esq., Hearing Officer, NM Tax and Revenue12:15 p.m. Lunch (provided at the State Bar Center)1:00 p.m. Technological Advances of Ignition Interlocks Jean-Claude Guennette, Esq.2:00 p.m. Adjourn

3:30 p.m. Registration 4:00 p.m. CLE (1.0 EP) Hon. Judge Alisa Hadfield, 2nd Judicial District Court

5:00 p.m. Solo and Small Firm Annual Meeting6:00 p.m. Adjourn

SECOND ANNUAL ADR INSTITUTE(for Lawyers, Negotiators, Facilitators, Collaborators, Mediators, Clinicians)

MOVING BEYOND THE BASICS: A Strategic Approach to Mediating Cases with Conflict Resolution Expert Nina Meierding

THE NUTS AND BOLTS OF CHAPTER 11 BANKRUPTCY

CRIMINAL LAW CLE: DWI: Beyond the Courtroom

SOLO’S AT SEASONS RESTAURANT

Thursday, November 10, 2011 • State Bar Center, Albuquerquer Standard Fee $229 r Government, Legal Services Attorney, Paralegal $199Co-Sponsor: First and Second Judicial District Courts

Wednesday, November 16, 2011 • State Bar Center, Albuquerquer Standard Fee $219 r Bankruptcy Law Section Member, Government, Legal Services Attorney, Paralegal $189Co-Sponsor: SBNM Bankruptcy Law Section

Thursday, November 17, 2011 • State Bar Center, Albuquerquer Standard Fee $149 r Criminal Law Section Member, Government, Legal Services Attorney, Paralegal $129Co-Sponsor: SBNM Criminal Law Section

Thursday, November 17, 2011 • Season’s Restaurant in Old Town, 2031 Mountain Rd. NW, Albuquerque, NM 87104r Standard Fee $45Co-Sponsor: SBNM Solo and Small Firm Section

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7:30 a.m. Registration7:55 a.m. Introductory Remarks Linda I. Leyba, Esq., Leyba Law Firm, P.C.8:00 a.m. 2011 Title Insurance Update Edward J. Roibal, Esq., Roibal Law Firm, P.A.8:30 a.m. 2011 Legal Update on Significant Statutes and Decisions Jack Burton, Esq., Rodey, Dickason, Sloan Akin, & Robb9:30 a.m. Intermediate Discussion of Deeds of Trust and Real Estate

Contracts in NM Orlando Lucero, Esq., Stewart Title10:30 a.m. Break10:45 a.m. Ethical Responsibilities of Real Property Attorneys Julie Vargas, Esq., Hunt & Davis PC James T. Reist, Esq., Tax Estate & Business Law Ltd 11:45 p.m. Lunch (provided at the State Bar Center)

12:45 p.m. Commercial Real Estate Loan Workouts and Foreclosure Issues Meg Meister, Esq., Modrall Sperling Roehl Harris & Sisk PA Ruth M. Schifani, Esq., Modrall Sperling Roehl Harris & Sisk PA1:45 p.m. Recent Developments- Environmental Due Diligence and

Bona Fide Purchaser Eric Laurence, Esq., Campbell & Wells2:30 p.m. Break2:45 p.m. Residential Real Estate Loan Workouts and Foreclosure Issues Keya Koul, Esq., Castle Stawiarski, LLC3:45 p.m. Leasing Issues- Tenant Improvements and Landlord Work

Letter Larry Wells, Esq., Campbell & Wells4:45 p.m. Adjourn/ RPTE Section Annual Meeting5:00 p.m. Real Property, Trust and Estate Law Section and Elder Law

Section Holiday Mixer

2011 REAL PROPERTY INSTITUTEFriday, December 2, 2011 • State Bar Center, Albuquerquer Standard Fee $239 r RPTE Section Member, Government, Legal Services Attorney, Paralegal $209Co-Sponsor: SBNM Real Property, Trust and Estate Law Section Section

6.3 G

7:30 a.m. Registration8:00 a.m. ABA Presentation: The Financial Action Task Force and the

Good Practices Guidance (1.0 EP) Duncan Osbourne, Esq., Osborne, Helman, Knebel & Deleery,

L.L.P., Austin, Texas9:00 a.m. Client Selection Damon Ely, Esq., Law Office of Daymon Ely Morris Chavez, Esq., Saucedo Chavez PC10:00 a.m. Break10:15 a.m. Jury Selection Christopher Saucedo, Saucedo Chavez PC11:15 a.m. Dealing with Difficult Counsel (1.0 EP) Charles Vigil, Esq., Rodey Law Firm, Moderator David Chacon, Esq., The Chacon Law Firm Michael Hart, Esq., Martinez Hart & Thompson PC Carolyn Ramos, Esq., Butt Thornton & Baehr PC12:15 p.m. Lunch (provided at the State Bar Center)

BREAKOUTS1:00 p.m. First DUI Presenter TBA Employment Law Samantha Jarrett, Esq., Assistant City Attorney, City of Albuquerque Tami Keating, Esq., Allen Shepherd Lewis Syra & Chapman PA2:00 p.m. Disciplinary Board (1.0 EP) William D. Slease, Esq., Chief Disciplinary Counsel,

New Mexico Disciplinary Board3:00 p.m. Break

BREAKOUTS3:15 p.m. Mediation Basics David P. Levin, Esq., 2nd Judicial District Court Basics of Family Law Maria Montoya Chavez, Esq., Sutin Thayer & Browne PC4:15 p.m. Adjourn and Reception (State Bar Center)

2011 BRIDGE THE GAPFriday, November 18, 2011 • State Bar Center, Albuquerquer Standard Fee $229 r Government, Legal Services Attorney, Paralegal $199 r Young Lawyers DIvision Member $129Co-Sponsor: SBNM Young Lawyers Division

4.0 G 3.0 EP



1.0 EP

STATE BAR VIDEO REPLAYS State Bar Center • Albuquerque

OCTOBER 18 Skeptically Determining the Limits of Expert Testimony & Evidence, Part 2 4.7 G, 2.0 EP8:30 a.m. r $219

An Attorney’s Guide to Good Lawyering for People with Disabilities (2009) 1.0 EP2:00 p.m. r $49

First Annual Solo and Small Firm Institute: Social Media and Communication 4.0 G, 2.0 EP8:30 a.m. r $179

ABCs of Foreclosure (2010) 3.7 G9:00 a.m. r $129

Gender Roles in the Courtroom (2011 Annual Meeting) 1.0 G 2:30 p.m. r $49

OCTOBER 25Worker’s Compensation to Social Security (2010) 2.7 G8:30 a.m. r $99

Representing Claimants in Social Security Disability Appeals (2010)3.4 G12:30 p.m. r $119

Recent Developments on the Supreme Court: A New Disciplinary Process (2011 Annual Meeting) 1.0 G9:00 a.m. r $49

The Court of Public Opinion (2011 Annual Meeting) 1.0 G10:15 a.m. r $49

2011 Ethics/Professionalism: Conquering the Pitfalls of our Profession for a Healthy and Successful Career 2.0 EP 12:30 p.m. r $79

Medicine of Personal Injury 6.0 G8:45 a.m. r $209


TWO WAYS TO REGISTER:INTERNET: www.nmbarcle.org FAX: (505) 797-6071, 24 hour accessPlease Note: For all WEBCASTS and TELESEMINARS, you must register online at www.nmbarcle.org

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REGISTER EARLY! Advance registration is recommended as it guarantees admittance and course materials. If space and materials are available, paid registrations will be accepted at the door.PAYING BY CHECK/PURCHASE ORDER: If you will be paying by check or government issued Purchase Order, please complete this registration form and present it at the registration desk with your check/purchase order on the day of the seminar.CANCELLATIONS & REFUNDS: If you find that you must cancel your registration, send a written notice of cancellation via fax by 5 p.m., one week prior to the program of interest. A refund, less a $50 processing charge will be issued. Registrants who fail to notify CLE by the date and time indicated will receive a set of course materials via mail following the program.MCLE CREDIT INFORMATION: Courses have been approved by the New Mexico MCLE Board. CLE of SBNM will provide attorneys with necessary forms to file for MCLE credit in other states. A separate MCLE filing fee may be required.ATTENTION PERSONS WITH DISABILITIES: Our meetings are held at facilities which are fully accessible to persons with mobility disabilities. If you plan to attend our program and will need an auxiliary aid or service, please contact the CLE of SBNM office one week prior to the program.PROGRAM CANCELLATION: Pre-registration is recommended. Program will be cancelled one week prior to scheduled date if attendance is insufficient. Pre-registrants will be notified by phone and full refunds given.TAPE RECORDING OF PROGRAMS IS NOT PERMITTED.CLE AUDIT POLICY: Members of the State Bar of New Mexico (to include attorneys and paralegals) and other legal staff (legal staff being defined as legal assistants and staff of members of the State Bar of New Mexico) may audit State Bar CLE courses at a cost of $10, space permitting. Course materials, breaks and/or lunch, if applicable, may be purchased at an additional cost of $29. Auditors should contact the CLE office in advance and notify staff of their intent to audit. “Walk-in” auditors will also be permitted on a space available basis. Auditors will not receive CLE credits for the audit fee. If an auditor chooses to receive CLE credit for attending the course, the request and payment must be made to CLE staff on the day of the program. Attendees who request CLE credit prior to the program will not be allowed to change to audit. No exceptions will apply. This policy applies to live seminars only and excludes special events.SCHOLARSHIPS: Please note, scholarships are available on an ‘as needed’ basis for up to 10% of any given seminar. The amount of the scholarship is equivalent to a 50% reduction of the standard fee for each seminar. To qualify, recipients are required to sign a financial assistance form available from the CLE department. For further information, please call (505) 797-6020.

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8:30 a.m. Registration9:00 a.m. Fundamentals of Technology Craig D. Ball, Esq., Craig D. Ball, P.C., Austin, Texas10:00 a.m. Break10:15 a.m. Fundamentals of Technology (continued) Craig D. Ball, Esq.11:15 a.m. Ethical Concerns Associated with Metadata (1.0 EP) Donna Payne, CEO and Founder, PayneGroup,

Seattle, Washington12:15 p.m. Lunch (provided at the State Bar Center)1:00 p.m. Evidentiary Issues Hon. Paul W. Grimm, Chief Magistrate, U.S. District Court,

District of Maryland Craig D. Ball Craig D. Ball, Esq., Craig D. Ball, P.C., Austin, Texas Anne Kershaw, Esq., Founder, Senior Attorney, & Consultant,

A. Kershaw, P.C., Tarrytown, NY

Admissability E-Mail Social Media2:30 p.m. Break2:45 p.m. New Frontiers Anne Kershaw, Esq.3:45 p.m. Ethical Evidentiary Issues (1.0 EP) Hon. Paul W. Grimm Duty to Preserve Spoliation Digital Search Methodology Competency4:45 p.m. Q & A5:00 p.m. Adjourn

THE RELEVANCE AND RISKS OF EVIDENCE AND E-DISCOVERY FOR EVERYDAY PRACTICE featuring Honorable Paul W. Grimm, Craig Ball, Anne Kershaw, and Donna Payne Thursday, December 8, 2011 • State Bar Center, Albuquerquer Standard Fee $249

4.7 G 2.0 EP





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Opinion Number: 2011-NMSC-037

Topic Index:Property: Adverse Possession; Easement; Inverse Condemnation;

Notice; Possession; Purchaser; Recording; and Titles

CITY OF RIO RANCHO,Plaintiff-Respondent,

versusAMREP SOUTHWEST INC.,

Defendant-Petitioner.No. 32,486 (filed: August 22, 2011)

ORIGINAL PROCEEDING ON CERTIORARILOUIS P. MCDONALD, District Judge

opinion

edWard l. chávez, Justice

{1} In 1985, at the behest of the City of Rio Rancho, Amrep Southwest Inc. re-corded a plat for the Vista Hills West Unit 1 (VHWU1) subdivision, granting the City a drainageeasementovertenacresidentifiedas Parcel F. In 2004, Amrep sold Parcel F to the Mares group in fee simple, subject to the drainage easement. Mares in turn sold it to Cloudview Estates in fee simple, subject to the same recorded drainage easement. Cloudview asked the City to vacate the drainage easement and subdivide the parcel into thirty lots. The City declined because it found that the City and Amrep had originally intended to perpetually dedicate Parcel F as open space.{2} Even if the City and Amrep intended Parcel F to be open space, what effect does the recorded plat designating Parcel F as a drainage easement have on Cloudview’s subsequent purchase of Parcel F? Cloudview contends that the recorded plat controls because it was not aware of any unrecorded interests the City had in Parcel F, making Cloudview a good faith purchaser whose ownership is subject only to the City’s drainage easement. In addition, Cloudview contends that the City’s decision not to va-cate the easement and approve Cloudview’s subdivision plan was arbitrary and contrary to law, ultimately entitling Cloudview to reasonable compensation because the City deprived Cloudview of any economically beneficialuseoftheland.{3} The City responds that Cloudview is not a good faith purchaser because (1) the drainage easement over the entirety of the ten-acre parcel grants fee title to the City because such an easement is a dedication of land for public use under NMSA 1978, Section 3-20-11 (1973); (2) the City has fee title by adverse possession because the City openly possessed the land and had color of title by virtue of the plat; and (3) a drainage easement on the entirety of a ten-acre parcel is the type of ambiguity that should have put Cloudview on notice that it had to diligently investigate whether the City had a claim to title to the land greater than a drainage ease-ment. Finally, the City seeks equitable relief against Amrep for having sold Parcel F in fee simple, despite Amrep’s promises to the City and VHWU1 lot purchasers that Parcel F would remain open space in perpetuity.{4} We conclude that Cloudview is a good faith purchaser whose fee-title ownership interest is subject only to the City’s drainage easement for three reasons. First, the plat doesnotspecificallydesignateParcelFfor

MATTHEW M. SPANGLERJENICA J. JACOBI

LASTRAPES, SPANGLER & PACHECO, P.A

Rio Rancho, New Mexicofor Petitioner

RANDY S. BARTELLSHARON T. SHAHEEN

MONTGOMERY & ANDREWS, P.A. Santa Fe, New Mexico

for Respondent

CONSOLIDATED WITH:Docket No. 32,489

CITY OF RIO RANCHO,Plaintiff-Respondent and Cross-Petitioner,

versusCLOUDVIEW ESTATES, LLC,

Defendant-Petitioner and Cross-Respondent.

ORIGINAL PROCEEDING ON CERTIORARILOUIS P. MCDONALD, District Judge

J. DOUGLAS FOSTERTRAVIS G. JACKSON

FOSTER, RIEDER & JACKSON, P.C.Albuquerque, New Mexico

for Petitioner and Cross-Respondent

RANDY S. BARTELLSHARON T. SHAHEEN

MONTGOMERY & ANDREWS, P.A.Santa Fe, New Mexico

for Respondent and Cross-Petitioner

DAVID H. THOMAS IIIDAVE THOMAS & ASSOCIATES, P.C.

Albuquerque, New Mexico

R. S. RADFORDSacramento, California

for Amicus CuriaePacific Legal Foundation


public use, and therefore fee title was not conveyed to the City under Section 3-20-11. Second, the City does not have color of title for purposes of adverse possession because the grant of an easement is not the equivalent of granting fee title. Third, the recorded plat unambiguously grants to the City an ease-ment for thespecificpurposeofdrainage,thereby extinguishing any unrecorded in-terests and relieving Cloudview, which was a subsequent purchaser without knowledge of the unrecorded interests, from its duty to diligently investigate whether the City had other adverse claims to the property title.{5} We also agree that the City’s decision declining to vacate the drainage easement was arbitrary and contrary to law because the City relied on an unrecorded open space easement in declining Cloudview’s applica-tion. However, because we remand to the City to reconsider Cloudview’s application to subdivide Parcel F and vacate the drain-age easement, we conclude that Cloudview’s inverse condemnation claim is premature.{6} Finally, we hold that genuine issues of material fact exist with respect to the City’s unjust enrichment claim against Amrep, making summary judgment on that count inappropriate.I. PROCEDURAL BACKGROUND{7} After purchasing Parcel F, Cloudview submitted a preliminary plat to the City’s Planning and Zoning Board, seeking to sub-divide the parcel into thirty lots. The Plan-ning and Zoning Board approved the plat and subdivision. However, after receiving citizen objections, the City Council remanded the approval back to the Planning and Zoning Board for its reconsideration. Cloudview filedanotherapplicationwiththePlanningand Zoning Board that included a request for the City to vacate the drainage easement on Parcel F. This time the Planning and Zoning Board did not grant the application because it concluded that the drainage easement implicitly granted the City the right to use Parcel F as open space. The City’s Govern-ingBodyaffirmedthePlanningandZoningBoard, adopting verbatim the Planning and Zoning Board’s decision and declining to vacate the easement. The Governing Body stated that “the protection of Parcel F as open space provides a valued public use originally made a condition of the development of [VHWU1] that should be continued.”{8} Cloudview timely sued the City in federal district court, alleging due process and equal protection violations and seek-ing judicial review of the City’s decision to decline to vacate the easement. On October 6, 2006, the federal district court dismissed the complaint without prejudice, concluding

that the case was not ripe for decision.{9} Four days before the dismissal, on October 2, 2006, the City sued Amrep and Cloudview in state district court. The City sought to quiet title to Parcel F, contending that fee title to Parcel F was vested in the City. In the alternative, the City sought a declaratory judgment that the City owns a permanent open space easement over the entirety of Parcel F that cannot be vacated and with which no form of development is compatible. The City also sought equitable relief to prevent the unjust enrichment of Amrep and Cloudview that would arise from the development of Parcel F, despite Amrep’s promises to the City that Parcel F would be maintained as open space. Cloud-viewfiledacounterclaimseekingreversalofthe City’s decision not to vacate the drainage easement and for reasonable compensation, alleging in a claim of inverse condemnation that the City’s decision deprived Cloudview ofanyeconomicallybeneficialuseofParcelF.{10} Amrep and Cloudview subsequently filedmotionsforsummaryjudgmentontheCity’s quiet title claim and the City’s request for a declaration that it had a perpetual open space easement. The district court found that the City’s only property interest in Parcel F was a drainage easement and that Cloudview was a good faith purchaser for value of Parcel F without knowledge or constructive notice of any adverse interest of the City that is greater than the City’s drainage easement. The district court therefore granted partial summary judgment to Amrep and Cloud-view, dismissing with prejudice the City’s quiet title and declaratory judgment claims.{11} The district court also granted Cloud-view’s motions for partial summary judg-ment on Cloudview’s counterclaims. The district court reversed the City’s administra-tive decision not to vacate the drainage ease-ment as “contrary to law and not supported by substantial evidence.” The district court granted summary judgment to Cloudview on its inverse condemnation claim based on the City’s refusal to vacate a portion of the easement.{12} On appeal from the district court, the Court of Appeals reversed summary judg-ment on the City’s quiet title and declara-tory judgment claims, concluding that the district court erred by relying solely on the recordedfinalplatandrefusingtoconsiderextrinsic evidence of “what the City and Amrep actually intended by the designation of a drainage easement over the entirety of Parcel F.” City of Rio Rancho v. Amrep Sw., Inc., 2010-NMCA-075, ¶¶ 1-2, 15, 148 N.M. 542, 238 P.3d 911. The Court of Appeals

also reversed the district court’s grant of summary judgment in favor of Cloudview on its counterclaims, concluding that the City’s decision was in accordance with the law and supported by substantial evidence. City of Rio Rancho v. Cloudview Estates, LLC, No. 29,510, slip op. at 5 (N.M. Ct. App. June 11, 2010). With respect to the inverse condemnation claim, the Court of Appeals found that there are genuine issues of mate-rial fact regarding the nature and extent of the easement over Parcel F. Id. at 19-20. The Court of Appeals explained that “Cloudview purchased the property as a good faith pur-chaser for value without notice but subject to the easement over the entirety of Parcel F.” Id. at 19.{13} Amrep and Cloudview petitioned thisCourtforcertiorari,andtheCityfileda conditional cross-petition challenging Cloudview’s good faith purchaser status and the timeliness of Cloudview’s request for judicial review of the City’s administrative decision. We granted each party’s petition forwritofcertiorariandaffirmtheCourtofAppeals in part and reverse in part.II. DISCUSSIONA. Cloudview Is a Good Faith

Purchaser of Parcel F and Owns Parcel F Subject to the City’s Recorded Drainage Easement.

1. Summary Judgment Standard of Review

{14} In Romero v. Philip Morris Inc. (Philip Morris), 2010-NMSC-035, 148 N.M. 713, 242 P.3d 280, we repeated the follow-ing standards regarding appeals of summary judgments. Our review of summary judg-ment on appeal is de novo. Id. ¶ 7. Summary judgmentwill be affirmed ifweconcludethat “there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.” Id. (internal quotation marks and citation omitted). We “view the facts in a light most favorable to the party opposing summary judgment and draw all reasonable inferences in support of a trial on the merits.” Id. (internal quotation marks and citation omitted). The party moving for summary judgment has the “initial burden of establishing a prima facie case for summary judgment” by presenting “such evidence as issufficientinlawtoraiseapresumptionoffact or establish the fact in question unless rebutted.” Id. ¶ 10 (internal quotation marks and citation omitted). Once the moving party has met this burden, “the burden shifts to the non-movant to demonstrate the existence of specific evidentiary factswhichwouldrequire trial on the merits.” Id. (internal quotation marks and citations omitted). To determine which facts are material, a court’s


focus should be on whether, under the perti-nent substantive law, “the fact is necessary to give rise to a claim.” Id. ¶ 11 (internal quotation marks and citation omitted). 2. Fee Title to Parcel F Did Not

Vest in the City. {15} The City contends that evidence before the district court created genuine issues of material fact precluding summary judgment because such evidence supports a reasonable inference that the City acquired fee title to Parcel F by either statutory dedi-cation or adverse possession. The evidence before the district court was that in 1985, Amrep submitted to the City a preliminary plat for the proposed VHWU1 subdivision. The VHWU1 preliminary plat is part of the record on appeal, but it contains no mark-ings to indicate that it was ever recorded in Sandoval County. The preliminary plat describes Parcel F as land that “WILL BE OPEN SPACE.”{16} In contrast, the final plat for the VHWU1 subdivision, which was recorded in the public property records of Sandoval County on October 18, 1985, labels Parcel F with the abbreviation “D.E.,” which, accord-ing to the plat, stands for “Drainage Ease-ment.”The recordedfinal plat also statesthat “the Owners of the Property do hereby dedicate all public thoroughfares which are shown hereon to the City of Rio Rancho, New Mexico, and do hereby grant easements shown on the plat.” The VHWU1 recorded plat was approved by the City’s Planning and Zoning Commission and endorsed by Amrep.{17} The record on appeal reflects the City’s consistent admission that it instructed Amrep to apply the drainage easement desig-nation to Parcel F on the VHWU1 recorded plat. The City maintains, however, that “drainage easement” was used as a surrogate term for “open space,” and that it relied on Amrep’s representations that Amrep would nonetheless set Parcel F “aside as open space in perpetuity when the City approved the plat.” Thus, argues the City, having acquired fee title by virtue of dedication or adverse possession prior to Amrep’s sale of Parcel F, Amrep had no interest in Parcel F to convey, thus depriving Cloudview of good faith purchaser status. a. Statutory Dedication Under

Section 3-20-11{18} Because the City relies on Section 3-20-11 for its argument that fee title to Parcel F vested in the City before Amrep sold Parcel F, we will rely on this section to determine which facts are material for purposes of summary judgment. Under Sec-tion 3-20-11, a municipality automatically

acquires fee title to land within its territory once a plat that designates the land “for publicuse”isendorsedandfiled.TheCitycontends that the drainage easement desig-natedonthefinalrecordedplatconstitutesa dedication for public use under Section 3-20-11. We disagree. “Although drainage undoubtedly can be a public use of property, . . . [m]erely because land can be dedicated to public use[] does not mean it has been.” Smith v. Beesley, 247 P.3d 548, 556 (Ariz. Ct.App.2011)(findingthatdrainageease-ments designated solely for the purpose of drainage on subdivision plat were not for public use); see State ex rel. State Highway Comm’n v. Briggs, 73 N.M. 170, 172, 386 P.2d 258, 259-60 (1963) (“The plat . . . as filedandreceivedintoevidencecertainlydidnot designate the parking area as an area set aside for public use as required by the statute. It merely designates the area involved as a ‘parking area.’”). Where a subdivision plat does not clearly designate land as set aside forpublicuse,wecannotfind the land tohave been dedicated under Section 3-20-11.{19} The practical effect of allowing the City to prevail on this claim would be the trans-formation of a lesser, nonpossessory prop-erty interest—an easement—into a greater, possessory interest—fee title—without an indication on the recorded plat of the parties’ intent to do so. Section 3-20-11 only oper-atestovestfeetitletoaspecificpropertyinamunicipality where a plat expressly dedicates the property “for public use.” Although the preliminary plat submitted by Amrep did identify Parcel F as land that will be open space, that preliminary plat was not recorded as required by NMSA 1978, Section 14-9-1 (1991). Moreover, the only “dedication” in the recorded plat was of the public thoroughfares. Thelanguageintheplatabundantlyclarifiesthe grant of a drainage easement for Parcel F, not a more general open space easement. Had the City wanted Parcel F to be dedicated for public use, it could have insisted that Parcel F be dedicated “for public use” as open space. It did not.{20} There is no genuine issue of mate-rial fact concerning whether the VHWU1 recorded plat designates Parcel F “for public use.” The plat designates Parcel F as a drainage easement and nothing more. Because the VHWU1 recorded plat did not meet this statutory requirement, the City’s claim for acquisition of fee title by opera-tion of Section 3-20-11 fails as a matter of law. The district court’s grant of summary judgment against the City on this claim was appropriate. b. Adverse Possession{21} The City also claims that it has fee

title to Parcel F under adverse posses-sion.Adversepossessionisdefinedas“anactual and visible appropriation of land, commenced and continued under a color of title and claim of right inconsistent with and hostile to the claim of another.” NMSA 1978, § 37-1-22 (1973). “A party claiming ownership of land by adverse possession must prove by clear and convincing evidence continuous adverse possession for ten years under color of title, in good faith, and pay-ment of taxes on the property during these years.” Williams v. Howell, 108 N.M. 225, 227, 770 P.2d 870, 872 (1989). “If any one of the elements necessary to establish title to land by adverse possession is missing, the claimant will not obtain title.” Hernandez v. Cabrera, 107 N.M. 435, 436, 759 P.2d 1017, 1018 (Ct. App. 1988).{22} The City relies on the VHWU1 re-corded plat for color of title. “To possess color of title, the claimant must have a writing or a conveyance of some kind that purports to convey the land title to which is claimed.” Madrid v. Rodriguez (In re Estate of Duran), 2003-NMSC-008, ¶ 20, 133 N.M. 553, 66 P.3d 326 (internal quotation marks and citation omitted); see Slemmons v. Massie, 102 N.M. 33, 34, 690 P.2d 1027, 1028 (1984) (“[Color of title] must attempt to give title to the adverse occupant, but for some reason fails to do so.”).{23} The VHWU1 recorded plat grants a drainage easement to the City over the entirety of Parcel F. Is the grant of this drain-age easement a writing or conveyance that purports to convey fee title to the City? The answer is no; “an easement is distinguished from a fee, and constitutes a liberty, privi-lege, right, or advantage which one has in the land of another . . . measured by the nature and purpose of the easement.” Kennedy v. Bond, 80 N.M. 734, 736-37, 460 P.2d 809, 811-12 (1969) (internal quotation marks and citation omitted). We conclude that the City has failed to create a genuine issue of mate-rial fact on the essential element of color of title because the VHWU1 recorded plat does not purport to grant fee title to the City. We hold that this claim fails as a matter of law and uphold the district court’s grant of summary judgment as to the City’s adverse possession claim. 3. Cloudview Bought Parcel F

Without Notice of the City’s Claimed Open Space Easement.

{24} The City next argues that even if the City does not hold fee title to Parcel F, Cloudview is not a good faith purchaser without notice of the City’s claim to an open space easement. In district court, the


City sought a declaratory judgment that the drainageeasementdesignatedon thefinalrecorded plat actually granted the City a permanent open space easement over the entirety of Parcel F that cannot be vacated because the City and Amrep intended to create open space as part of the VHWU1 subdivision approval process. In the alterna-tive, the City sought a declaratory judgment that Amrep impliedly dedicated Parcel F to the City when Amrep represented that Parcel F would be maintained as open space in perpetuity. See Santa Fe Cnty. Bd. of Cnty. Comm’rs v. Town of Edgewood, 2004-NMCA-111, ¶ 13, 136 N.M. 301, 97 P.3d 633 (explaining that the public obtains an easement if “a landowner offers to dedicate certain property for public use and the offer is accepted”).{25} The City does not assert that Cloud-view had actual knowledge of the City’s alleged open space easement. Instead the City argues that Cloudview was on “inquiry notice” of the City’s claim to an open space easement. Therefore, argues the City, be-cause “Cloudview had knowledge of facts that would have led a prudent person to investigate the history and reasons for desig-nating a drainage easement over the entirety of Parcel F,” Cloudview should be charged with knowledge of all facts that a reasonably diligent investigation would have revealed. The City contends that such an investiga-tion would have revealed to Cloudview that Amrep and the City intended Parcel F to be open space in perpetuity.{26} A good faith purchaser of real prop-erty who has invested money in the property without notice of a third party’s unrecorded interest in that property is protected under New Mexico law. See NMSA 1978, § 14-9-3 (1990); Angle v. Slayton, 102 N.M. 521, 523, 697 P.2d 940, 942 (1985). The general rule is that a prospective purchaser of real property is deemed to have notice of adverse claims to that property if the purchaser has “[k]nowledge of such facts as ought to put a prudent [person] upon inquiry as to the title.” Hunt v. Ellis, 27 N.M. 397, 401, 201 P. 1064, 1065 (1921) (internal quota-tion marks and citation omitted). Once a prospective purchaser obtains knowledge of facts that trigger a duty to inquire about the title, that purchaser must perform a “reasonably diligent investigation”—one that “would lead to the knowledge of the requisite facts by the exercise of ordinary diligence and understanding.” Id. (internal quotation marks and citation omitted). In such cases, the prospective purchaser is charged with knowledge of all facts that “a reasonably diligent investigation would have

ascertained.” Id. (internal quotation marks and citation omitted). In applying the inquiry notice rule, “each case must be governed by its own peculiar circumstances.” Id. (internal quotation marks and citation omitted). “A person cannot be a [good faith] purchaser” if that person is aware of facts that “should have put him [or her] to an inquiry, which if pursued with due diligence, would have led toaknowledgeoftheinfirmitiesappearingupon the face of the instrument involved in the transaction.” Dunne v. Petterman, 52 N.M. 284, 287-88, 197 P.2d 618, 620 (1948).{27} The City presents two distinct theo-ries to support its claim that Cloudview had a duty to inquire: (1) that the City was in “open possession” of Parcel F when Cloud-view made its purchase, and (2) that before purchasing Parcel F, Cloudview knew of an “inherent ambiguity” in the VHWU1 recorded plat. We analyze each theory in turn. a. The City Failed to Present

Evidence upon Which Rea-sonable Minds Could Differ as to the City’s Open Possession of Parcel F.

{28} The City argues that Cloudview had a duty to inquire about the nature and scope of the drainage easement on Parcel F because Cloudview’s agent, Mr. Garcia, knew that the City had an easement over Parcel F, and Parcel F had remained open space despite having been surrounded by development for more than twenty years. In light of these facts, the City contends that Cloudview had a duty to investigate why the City was in open possession of Parcel F when Cloudview purchased the property. Cloudview argues that the City was not in open possession, citing Teofan v. Cools (In re Spring Creek Invs. of Dallas, N.V., Inc.), 71 B.R. 157, 159 (Bankr. N.D. Tex. 1987) (“possession, to act as . . . notice of adverse ownership, must be visible, open, notorious, and exclusive, and not merely constructive possession.”).{29} Possession of land by one other than the owner of record can be sufficient totrigger a purchaser’s duty to inquire fur-ther. See Hunt, 27 N.M. at 402, 201 P. at 1066 (“A person who purchases an estate in the possession of” someone other than the seller is “bound to inquire of such possessor what right [the possessor] has in the estate.” (internal quotation marks and citation omit-ted)). “What acts may or may not constitute a possession are necessarily varied and depend to some extent upon the nature, locality, and use to which the property may be applied, the situation of the parties, and a variety of circumstances which have necessarily to be taken into consideration.” Id. at 401-02,

201 P. at 1065 (internal quotation marks and citation omitted).{30} However, open possession of property creates no duty to investigate where all signs of possession can be attributed to and are consistent with ownership by the owner of record. See id. at 403, 201 P. at 1066 (hold-ing that a subsequent purchaser did not have constructive notice of a third party’s claimed interest because the third party’s land use was not noticeably different than the use made prior to the third party’s alleged acquisition); see also Teofan, 71 B.R. at 159 (“Possession that could easily be referred to the person in whom stood the record title isnotsufficient.”).Whereopenpossessioncan be attributed to the owner of record, “[a]n investigator may certainly rely upon the truth of the recitals of a record, where they arespecific.”Smith & Ricker v. Hill Bros., 17 N.M. 415, 431, 134 P. 243, 247 (1913); see also Allison v. Curtis, 62 N.M. 387, 390, 310 P.2d 1042, 1044 (1957) (holding that innocent purchasers for value were entitled to rely on the property records).{31} Is the fact that Parcel F is undevel-oped and surrounded by subdivided parcels inconsistent with ownership by Amrep? No. The lack of development on Parcel F, even when viewed in contrast to the surrounding development, fails to raise a reasonable in-ference that anyone other than Amrep, and subsequently the Mares group, made the decision to leave the parcel undeveloped, and it certainly does not constitute open possession by anyone other than the owner of record. Accordingly, we conclude that the City failed to present evidence upon which reasonable minds would differ as to the City’s open possession of Parcel F. b. Cloudview Had No Duty

to Investigate the Nature or Scope of the Easement over Parcel F Because the Recorded Plat Unambigu-ously Granted a Drainage Easement to the City.

{32} The City also argues that Cloudview owed a duty to inquire further because Mr. Garcia “readily admits that prior to purchase he was aware of the inherent ambiguity in theFinalPlat.”Morespecifically,theCitycontends that there is an inherent ambiguity in the language granting the drainage ease-ment because (1) the recorded drainage ease-ment covered the entirety of Parcel F; (2) the topography of Parcel F precluded its use as a drainage easement; (3) the easement had to be vacated before the City would permit the subdivision to proceed; (4) Cloudview’s inquirywiththeCityresultedinanindefiniteanswer because the City employees with


whom Cloudview spoke did not know the history of Parcel F’s designation as a drain-age easement; and (5) the City would require Cloudview to cite all previous drainage stud-ies and reports in its new drainage report for the area.{33} The VHWU1 recorded plat expressly grants the City a drainage easement over Par-cel F. “An easement creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement.” Restatement (Third) of Prop.: Servitudes § 1.2(1), at 12 (2000). The ease-ment holder’s right to use the property is limited to the particular purpose for which the easement was created. See Restatement (Third) of Prop.: Servitudes § 1.2 cmt. d, at 15 (“The holder of the easement . . . is entitled to make only the uses reasonably necessaryforthespecifiedpurpose.”).Theowner of the fee title retains the right to make “any reasonable use desired of the land in which the easement exists,” as long as that use is consistent with the rights of the ease-ment holder. Kennedy, 80 N.M. at 736-37, 460 P.2d at 811-12 (internal quotation marks and citation omitted).

For example, the transferor of an easement for an underground pipeline retains the right to enter and make any use of the area covered by the easement that is notspecificallyprohibitedbytheeasement and that does not unrea-sonably interfere with use of the easement for pipeline purposes. The holder of the easement may only use the area for purposes reasonably related to the pipeline.

Restatement (Third) of Prop.: Servitudes § 1.2 cmt. d, at 15.{34} The purpose of the City’s easement, according to the unambiguous language on the VHWU1 recorded plat, is drainage. “The ordinary connotation of the word ‘drainage’ means the carrying away of water and other liquids either in closed or open conduits.” Peterson v. Barron, 401 S.W.2d 680, 686 (Tex. Civ. App. 1966). Cloudview and other subsequent purchasers are entitled to rely upontherecordedplat’sspecificrecitalofthe City’s right to use Parcel F only for drainage purposes. See Smith & Ricker, 17 N.M. at 431, 134 P. at 247 (Cloudview “may certainly rely upon the truth of the recitals of arecord,wheretheyarespecific”).TheCity,which admits that it instructed Amrep to use “drainage easement” as a surrogate term for “open space” on the recorded plat, cannot now rely upon a theory of ambiguity arising from that written instrument, unambiguous

on its face, to defeat Cloudview’s claim for protection as a good faith purchaser for value without notice. We hold as a matter of law that the designation of a drainage easement over Parcel F did not give rise to a duty for Cloudview to investigate the nature or extent of the easement. c. The District Court Properly

Excluded Extrinsic Evidence of Amrep’s and the City’s Intent Because Cloudview’s Good Faith Purchaser Status Extinguished the City’s Claimed but Unrecorded Interests.

{35} As the Court of Appeals correctly noted, “‘[a]n easement should be construed according to the intent of the parties.’” Cloudview, No. 29,510, slip op. at 19 (quot-ing Olson v. H & B Props., Inc., 118 N.M. 495, 498, 882 P.2d 536, 539 (1994)); see Restatement (Third) of Prop.: Servitudes § 4.1(1), at 496-97 (“A servitude should be interpreted to give effect to the intention of the parties ascertained from the language used in the instrument, or the circumstances surrounding creation of the servitude, and to carry out the purpose for which it was created.”).{36} Based on these general principles, the Court of Appeals relied upon contract law to conclude that the district court erred when it “failed to consider all of the extrin-sic evidence presented by the City to show that the Plat was ambiguous as to the true intent of the parties regarding the designa-tion and future use of Parcel F.” Amrep, 2010-NMCA-075, ¶ 11; see Mark V, Inc. v. Mellekas, 114 N.M. 778, 781, 845 P.2d 1232, 1235 (1993) (holding that the district court should have allowed the parties to submit extrinsic evidence to show that the meaning of a contract was unclear); C.R. Anthony Co. v. Loretto Mall Partners, 112 N.M. 504, 508-09, 817 P.2d 238, 242-43 (1991) (“[I]n determining whether a term or expression to which the parties have agreed is unclear, a court may hear evidence of the circumstances surrounding the making of the contract and of any relevant usage of trade, course of dealing, and course of performance.” (footnote omitted)). The City argues that this rule of contract interpreta-tion should be applied to plats as well as contracts. See Wilson v. Owen, 261 S.W.2d 19, 23 (Mo. 1953) (explaining that where the meaning of writing on a plat is in doubt, the court can look to extrinsic evidence to determine the parties’ intent).{37} However, the legal treatment of lan-guage in a recorded plat is different than the legal treatment of language in a contract. An

easement described in a recorded instrument must be in writing and duly recorded in theofficeofthecountyclerkofthecountywhere the easement is situated. Section 14-9-1. More importantly, when interpreting the nature and extent of an easement, we place “heavy emphasis . . . on the written expressions of the parties’ intent.” Restate-ment (Third) of Prop.: Servitudes § 4.1 cmt. d, at 499. Easements “are intended to bind successors to interests in the land, as well as the contracting parties, and are generally intendedtolastforanindefiniteperiodoftime.” Id. The recorded instrument “is often the primary source of information available to a prospective purchaser of the land.” Id. Therefore, the language in a granting instru-ment “should be interpreted to accord with the meaning an ordinary purchaser would ascribe to it in the context of the parcels of land involved.” Id. Consideration of extrinsic evidence that may illuminate “a particular meaning adopted by the creating parties is generally inappropriate because the creating parties intended to bind and benefit successors forwhom thewrittenrecord will provide the primary evidence of the [easement]’s meaning.” Id. at 499-500. “An easement should be construed accord-ing to its express and specific terms as amanifestation of the intent of the parties.” Sanders v. Lutz, 109 N.M. 193, 194, 784 P.2d 12, 13 (1989). But “[w]hen the express terms of an easement are ambiguous, the intent of the parties should be determined from the language of the granting instru-ment in conjunction with the surrounding circumstances.” Olson, 118 N.M. at 498, 882 P.2d at 539.{38} To allow extrinsic evidence to estab-lish an ambiguity in the meaning of language in a plat, when the language itself is unam-biguous, would frustrate the purpose of our law that governs the recording of instruments affecting real estate. To ensure that subse-quent purchasers of property have notice of prior claims of interest, New Mexico law provides that all “writings affecting the title torealestateshallberecordedintheofficeof the county clerk of the county or counties in which the real estate affected thereby is situated.” Section 14-9-1. The inevitable consequence of this requirement is the constructiveknowledge thatflows from itbecause “[s]uch records shall be notice to all the world of the existence and contents of the instruments so recorded from the time of recording.” NMSA 1953, § 14-9-2 (1886-87).{39} The purpose for requiring the record-ing of instruments affecting real estate in the county where the property is situated is to


provide “a place and a method by which an intending purchaser . . . can safely determine just what kind of title [the purchaser] is in fact obtaining.” Romero v. Sanchez, 83 N.M. 358, 361, 492 P.2d 140, 143 (1971) (internal quotation marks and citation omitted). The recording requirement seeks “to protect [good faith] purchasers against loss” from adverse claims of interest that are “not disclosed by any public record” and “not ascertainable by due diligence.” Id. (internal quotation marks and citation omitted); see also Arias v. Springer, 42 N.M. 350, 359, 78 P.2d 153, 159 (1938) (“The object of the statute is to prevent injustice by protecting thosewho,withoutknowledgeofinfirmitiesin the title, invest money in property or mort-gage loans; and those who have acquired judgment liens without such knowledge.”).{40} Thus, Section 14-9-3 provides that unrecorded instruments asserting interests in real estate shall not affect the title or rights of purchasers to real estate if the purchaser did not have knowledge of the existence of such unrecorded instruments. See Jeffers v. Doel, 99 N.M. 351, 353, 658 P.2d 426, 428 (1982) (explaining that the statute protects “innocent purchasers for value without notice of unrecorded instruments” (internal quotation marks and citation omitted)).{41} Municipalities are not exempt from the recording requirements. Municipalities are “entitled to have instruments affecting real estate [conveyed] to them . . . to be duly recorded in . . . the various counties in which the real estate is situated.” NMSA 1978, § 14-9-7(A) (1987). When a municipality records an instrument affecting real estate, that instrument “shall have the full legal ef-fect of recording and be legal notice of the rights of the public entities [to the] interests conveyed or granted.” Section 14-9-7(B).{42} The final recorded plat is what governs in this case, and the recorded plat unambiguously grants a drainage easement to the City. Because the drainage easement is unambiguous, Cloudview did not have a duty to investigate any additional adverse claims the City might have had to the title of Parcel F. Even if the City and Amrep intended “drainage easement” to mean “open space,” their intent is now irrelevant in light of Cloudview’s good faith purchaser status. When a good faith purchaser takes real property without notice of an unre-corded easement, the unrecorded easement is extinguished under Section 14-9-3. See Restatement (Third) of Prop.: Servitudes § 7.14 cmt. a, at 440 (“The basic rule is that all unrecordedservitudebenefits,regardlessofthe manner of their creation, are subject to extinguishment under the recording act.”).

We agree with the Restatement that the “ben-efitsproducedbysubjecting[easements]toextinguishment under the recording act will outweigh the social costs” because prospec-tive purchasers will be able to rely on the property records. Id.{43} Cloudview is a good faith purchaser who took Parcel F subject only to the City’s recorded drainage easement. See § 14-9-2 (charging subsequent purchasers with constructive notice of all recorded documents within the purchaser’s chain of title). We hold that each of the City’s claimed but unrecorded interests in Parcel F have been extinguished by Cloudview’s good faith purchaser status. Further, under the circumstances of this case, neither the scope nor the purpose of the easement may vary from drainage as expressed on the VHWU1 recorded plat.B. The City’s Administrative Decision

Was Arbitrary and Contrary to Law.

{44} As a threshold matter, the City con-tends that Cloudview failed to appeal the City’s administrative decision within the applicable limitation period because Cloud-viewfailedtofileacomplaintinstatedistrictcourt within two days of when the fed-eral court dismissed Cloudview’s complaint without prejudice. A person aggrieved by a decision of a zoning authority has thirty days to appeal to the district court. See NMSA 1978, § 3-21-9 (1999) (“A person aggrieved by a decision of the zoning authority . . . may appeal the decision pursuant to the provi-sions of Section 39-3-1.1 NMSA 1978.”); NMSA 1978, § 39-3-1.1(C) (1999) (“[A] personaggrievedbyafinal[administrative]decision may appeal the decision to district courtbyfiling indistrictcourtanoticeofappealwithinthirtydaysofthedateoffilingofthefinaldecision.”).{45} In this case, the City’s Governing Body issued itsfinal decisiononNovem-ber 10, 2005. Cloudview sought review in federal district court on December 8, 2005, twenty-eight days later. See Cloudview Es-tates, LLC v. City of Rio Rancho, Civ. No. 05-01283 MV/WPL (D.N.M. Dec. 8, 2005). Thefiling of the federal action tolled thelimitations period. See Gathman-Matotan Architects & Planners, Inc. v. State, Dep’t of Fin. & Admin., Prop. Control Div., 109 N.M. 492, 495, 787 P.2d 411, 414 (1990) (“[T]he filingofacomplaintordinarilytollstheap-plicable limitations period. In this respect, New Mexico has adopted an ‘equitable’ or nonstatutory tolling principle alongside the statutory tolling provisions in NMSA 1978, Sections 37-1-14, 37-1-9 and 37-1-12.”); see also Bracken v. Yates Petroleum Corp., 107

N.M. 463, 465, 760 P.2d 155, 157 (1988) (“Whenalawsuitisfiled,thatfilingshowsa desire on the part of the plaintiff to begin [the] case and thereby toll whatever statutes oflimitationwouldotherwiseapply.Thefil-ing itself shows the proper diligence on the part of the plaintiff which such statutes of limitation were intended to insure.” (inter-nal quotation marks and citation omitted)), disagreed with on other grounds, Team Bank v. Meridian Oil Inc., 118 N.M. 147, 151, 879 P.2d 779, 783 (1994).{46} While Cloudview’s federal action was still pending, the City initiated its suit in state district court. Cloudview had thirty daystofileitsanswertothecomplaintandany counterclaims it had against the City. Rules 1-012(A), 1-013 NMRA. Once the federal action was dismissed, Cloudview counterclaimed in state district court for review of the City’s administrative decision. A counterclaim is not barred by a statute of limitations if it was not barred at the time the complaintwasfiled.See, e.g., NMSA 1953, § 37-1-15 (1880); see generally M.A.L., Annotation, Commencement of Action as Suspending Running of Limitation Against Claim Which Is Subject of Setoff, Counter-claim, or Recoupment, 127 A.L.R. 909, 910 (1940) (“The rule which is supported by the majority of the cases is that unless otherwise provided by statute, if a counterclaim or setoff is not barred at the commencement of the action in which it is pleaded, it does not become so afterward during the pendency of that action.”). Additionally, Cloudview’s counterclaim was compulsory; as such, Cloudview could not have raised it separately as it would have been barred by res judicata. See Rule 1-013(A) (“A plead-ing shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim.”); see also City of Sunland Park v. Macias, 2003-NMCA-098, ¶ 18, 134 N.M. 216, 75 P.3d 816 (“Res judicata bars not only claims that were raised in the prior proceeding, but also claims that could have been raised.”). We conclude that Cloud-view’s appeal for review in the state district court was timely.{47} Having found that the state district court properly reviewed the City’s adminis-trative decision, “we will conduct the same review of an administrative order as the district court sitting in its appellate capacity, while at the same time determining whether thedistrictcourterredinthefirstappeal.”Rio Grande Chapter of the Sierra Club v. N.M. Mining Comm’n, 2003-NMSC-005, ¶


16, 133 N.M. 97, 61 P.3d 806. The district courtmaysetaside,reverse,orremandfinaladministrativeordersifitfindsthat“(1)theagency acted fraudulently, arbitrarily or capriciously; (2) the decision was not sup-ported by substantial evidence; or (3) the agency did not act in accordance with law.” Section 39-3-1.1(D). “A ruling by an admin-istrative agency is arbitrary and capricious if it is unreasonable or without a rational basis, when viewed in light of the whole record.” Rio Grande, 2003-NMSC-005, ¶ 17.{48} In this case, the City declined to vacate the drainage easement in part because the “protection of Parcel F as open space pro-vides a valued public use originally made a condition of the development of [VHWU1] that should be continued.” Because the City owns only a drainage easement over Parcel F, we conclude that the City’s decision to enforce an unrecorded open space easement against the rights of a subsequent good faith purchaser was arbitrary and contrary to law. However, we do not know how the City would have decided Cloudview’s ap-plication if it had not interposed a perpetual open space easement as a reason not to grant Cloudview’s application. Therefore, we vacate the City’s administrative decision and remand to the City’s Governing Body for further proceedings consistent with this Opinion.C. Cloudview’s Claim for Inverse

Condemnation Is Not Ripe for Consideration.

{49} Cloudview argues that the City’s deci-sion to retain Parcel F for public use as open space was in effect a taking of its property. See NMSA 1978, § 42A-1-29(A) (1983) (“A person authorized to exercise the right of eminent domain who has taken . . . any property for public use without making just compensation . . . is liable to the condemnee, or any subsequent grantee thereof, for the value thereof.”). Specifically,Cloudviewargues that the City deprived Cloudview of any economically beneficial use of itsproperty. See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019 (1992) (“[W]hen the owner of real property has been called upon tosacrificealleconomicallybeneficialusesin the name of the common good, that is, to leave [the] property economically idle, [the owner] has suffered a taking.”).{50} Because the City’s administrative decision has been vacated and remanded, Cloudview’s inverse condemnation claim is not yet ripe for our consideration. We reverse the district court’s grant of summary judg-ment in favor of Cloudview on this claim and

remand the claim to the district court where it shall be stayed pending the outcome of the City’s administrative decision.D. Genuine Issues of Material Fact

Exist with Respect to the City’s Claim for Damages Against Amrep for Unjust Enrichment.

{51} The City also seeks equitable relief in the form of a constructive trust to prevent Amrep’s and Cloudview’s unjust enrich-ment. The City argues that “Amrep should be held accountable for selling Parcel F to a third party for residential development after promising the City, as well as VHWU1 lot purchasers, that Parcel F would remain open space in perpetuity.” See Knight v. City of Albuquerque, 110 N.M. 265, 266, 794 P.2d 739, 740 (Ct. App. 1990) (“[A] developer will not be allowed to induce purchasers to buy property by purporting to include open space such as parks or golf courses in a sub-division plat, only to subsequently change the uses of those open space areas.”).{52} Wrongful conduct, such as fraud, may in some instances “warrant the imposition of a constructive trust.” Gushwa v. Hunt (In re Estate of Gushwa), 2008-NMSC-064, ¶ 34, 145 N.M. 286, 197 P.3d 1. “A court will impose a constructive trust to prevent the unjust enrichment that would result if the person having the property were permitted to retain it.” Id. (internal quotation marks and citation omitted). “If a court imposes a constructive trust, the person holding legal title is subjected to an equitable duty to convey the property to a person to whom the court has determined that duty is owed.” Id. (internal quotation marks and citation omitted).{53} In light of our conclusion that Cloud-view is a good faith purchaser for value without notice of the City’s claimed but unrecordedinterestsinParcelF,wefindnogrounds in the evidence presented by the City that would justify our imposition of a constructive trust upon Parcel F. In this context, Cloudview is entitled to retain the benefitofitsbargainwiththeMaresgroupand its resulting fee ownership of Parcel F.{54} Nevertheless, we conclude that the Citypresentedsufficientevidence, includ-ing affidavits and deposition testimony, to allow reasonable minds to differ on the elements of the City’s unjust enrichment claim against Amrep. To prevail on a claim for unjust enrichment, “one must show that: (1)anotherhasbeenknowinglybenefittedat one’s expense (2) in a manner such that allowanceoftheothertoretainthebenefitwould be unjust.” Ontiveros Insulation Co. v.

Sanchez, 2000-NMCA-051, ¶ 11, 129 N.M. 200, 3 P.3d 695. {55} Amrep has, at various times in this litigation, argued that it should not be consid-ered a defendant of the City’s unjust enrich-ment claim because the unjust enrichment countoftheCity’scomplaintsoughtspecificrelief in the form of a constructive trust on Parcel F, which Amrep no longer owns. We disagree. The City has always based its claim of entitlement to equitable relief on Amrep’s alleged knowledge and conduct. Unjust en-richment is a claim based in equity, and once a court is “rightfully possessed of a case it will not relinquish it short of doing complete justice. It weighs the equities between the parties and adopts various devices to protect against unjust enrichment.” Id. ¶ 13 (internal quotation marks and citation omitted). Our denial of the constructive trust relief initially requested by the City does not prevent the City’s maintenance of its unjust enrichment claim against Amrep for damages for unjust enrichment. We reverse the district court’s grant of summary judgment in favor of Am-rep on the City’s claim for unjust enrichment and remand to the district court to consider this claim and the appropriate remedy.III. CONCLUSION{56} Cloudview is a good faith purchaser for value of Parcel F subject only to the City’s recorded drainage easement. We uphold the district court’s grant of summary judgment in favor of Amrep and Cloudview on the City’s fee ownership and open space easement claims. We vacate the City’s administrative decision and remand to the City’s Governing Body for further proceed-ings consistent with this Opinion. We reverse the district court’s grant of summary judg-ment in favor of Cloudview on Cloudview’s inverse condemnation counterclaim and remand that claim to the district court where it shall be stayed pending the outcome of the City’s administrative decision. We reverse the district court’s grant of summary judg-ment in favor of Amrep on the City’s unjust enrichment claim, but we uphold summary judgment on that claim as to Cloudview.{57} IT IS SO ORDERED. EDWARD L. CHÁVEZ, Justice

WE CONCUR:CHARLES W. DANIELS, Chief JusticePATRICIO M. SERNA, JusticePETRA JIMENEZ MAES, JusticeRICHARD C. BOSSON, Justice, recused


Certiorari Denied, August 3, 2011, No. 33,053

From the New Mexico Court of Appeals

Opinion Number: 2011-NMCA-087

Topic Index:Appeal and Error: Standard of Review ; Preservation of Issues for Appeal;

and Substantial or Sufficient EvidenceCriminal Law: Conspiracy; and Fleeing

Criminal Procedure: Directed Verdict; and Miranda WarningsEvidence: Admissibility of Evidence; and Admissions

Jury Instructions: Criminal Jury Instructions

STATE OF NEW MEXICO,Plaintiff-Appellee,

versusJERICOLE COLEMAN,

Defendant-Appellant.No. 29,143 filed: (May 6, 2011)

APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTYCHARLES C. CURRIER, District Judge

GARY K. KINGAttorney GeneralFARHAN KHAN

Assistant Attorney GeneralSanta Fe, New Mexico

for Appellee

Chief Public DefenderCarlos Ruiz de la Torre

Assistant Appellate DefenderSanta Fe, New Mexico

for Appellant

opinion

celia foy castillo, chief Judge

{1} Defendant was convicted of aggra-vatedfleeinginviolationofNMSA1978,Section 30-22-1.1 (2003), and conspiracy to commit shooting at a dwelling in vio-lation of NMSA 1978, Section 30-28-2 (1979). He challenges two evidentiary rul-ings, claims that the denial of his motion for directed verdict was error, and raises two issues regarding jury instructions. We affirm.BACKGROUND{2} At approximately 4:00 a.m. on April 12, 2008, Defendant received a phone call from Mario Montoya and Daniel Martinez. They asked Defendant for a ride from a party, Defendant agreed, picked them up, and then accompanied them back to Mario’s home. Mario then suggested that they go “do some shoot-ings.” Defendant reluctantly agreed to this plan and drove them to a location in Roswell selected by Mario, a trailer located at 2409 North Mesa Street. When

they reached the trailer, Mario exited De-fendant’svehicleandfiredthreeroundsat the trailer.{3} At the time of the shooting, Richard Villa was the owner of the targeted trailer. Although he had recently moved from the trailer, he still kept varying possessions there and parked two vehicles in front of thetrailer.TheshotsMariofiredenteredthe trailer’s bedroom, living room, and kitchen and struck one of Villa’s cars.{4} A sheriff’s deputy, who happened to be in the vicinity of Villa’s trailer at the time of the shooting, heard the shots and proceeded in his marked sheriff’s vehicle toward the sounds. The deputy encoun-tered Defendant as he was driving away from the trailer with Daniel and Mario. The deputy began to follow Defendant, who rapidly accelerated in an attempt to flee. A high speed chase ensued; Defendant drove in excess of 100 miles per hour, ran through several stop signs, and a shotgun was jettisoned from the vehicle. The deputy’s emergency lights and siren were activated throughout the pursuit. The chase came to a sudden

conclusion when Defendant slammed into a curb, immobilizing his vehicle.{5} Defendant, Daniel, and Mario were arrested and taken to the police station. At the station, Defendant was advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and he agreed to speakwithOfficerNorthcutt.Defendantacknowledged his participation in the shooting and the high speed chase, but explained that his conduct was a conse-quence of peer pressure, and he claimed that he was merely following Mario’s commands.{6} In May 2008, Defendant was charged by criminal information with one count of aggravatedfleeinginviolationofSection30-22-1.1 and one count of conspiracy to commit shooting at a dwelling in violation of Section 30-28-2. At a pretrial conference, the State raised the issue of the admissibility of evidence relating to the deputy’s compliance with the Chavez County high speed pursuit policy. Citing State v. Padilla, 2008-NMSC-006, 143 N.M. 310, 176 P.3d 299, the State asked the court to “exclude from all stages of the trial”anyinquiryintowhethertheofficer’sconduct conformed to the requirements of the policy. After reviewing Padilla, the court issued a letter ruling prohibiting “evidence pertaining to the . . . pursuit policy or compliance therewith.”{7} At his jury trial, Defendant objected toOfficerNorthcutt’s testimony aboutDefendant’s post-arrest statements. The district court denied the objection and de-terminedthattheStatehadlaidasufficientfoundation. At the close of the State’s case, Defendant moved for a directed verdict as to both counts. Defendant as-sertedthattherewasinsufficientevidencethathecommittedaggravatedfleeingorconspiracy to commit shooting at a dwell-ing. The court disagreed and denied the motion.{8} As to jury instructions, Defendant asked the court to provide the jury with an instruction informing them of the require-ments of NMSA 1978, Section 31-1-5(A) (1973), which states that “[f]ollowing arrest, any person accused of a crime is entitled to have reasonable opportunity to make three telephone calls beginning not later than twenty minutes after the time of arrival at a police station.” Defendant explained that he wanted the jury to be aware that he had not been informed that “he could make three phone calls as required by the statute.” The court denied the requested instruction and concluded that the statute did not require officers


to inform suspects of their right to make phone calls.{9} The jury convicted Defendant of both charges. The court entered judg-ment and sentenced Defendant to eigh-teen months of incarceration to be fol-lowed by one year of parole. Defendant appeals.DISCUSSION{10} Defendant raises five issues on appeal. As to the evidence presented, Defendant claims that the district court erred in admittingOfficerNorthcutt’stestimony regarding Defendant’s post-arrest statements and asserts that the court erred “in suppressing evidence re-garding” the Chavez County high speed pursuit policy. Defendant next argues that the district court erred in denying his motion for directed verdict as to both counts. Finally, Defendant claims two errors in the jury instructions. First, he argues that the court erred in failing to issue an instruction “concerning his right to be informed that he could make three phone calls while in custody, pursuant to . . . Section 31-1-5(A).” Second, he asserts that the instruction given as to the charge of conspiracy to commit shooting atadwellingwasinsufficientbecausethejury was not instructed that Defendant must have known or should have known that the trailer was occupied. We address these arguments in turn.Evidentiary Rulings{11} “We review the admission of evidence under an abuse of discretion standard and will not reverse in the absence of a clear abuse. An abuse of discretion occurs when a ruling is against logic and is clearly untenable or not justifiedbyreason.”State v. Sarracino, 1998-NMSC-022, ¶ 20, 125 N.M. 511, 964 P.2d 72 (internal quotation marks and citations omitted).{12} Defendant’s first claim is that OfficerNorthcuttshouldnothavebeenpermitted to testify about the statements Defendant made during the post-arrest interrogation. Defendant asks this Court tosuppressthisportionofOfficerNorth-cutt’s testimony on the basis that Defen-dant’s statements were involuntary. The State objects that this argument was not preserved and asserts that Defendant failedtofileamotiontosuppressatorbefore trial nor did he raise the issue of voluntariness at trial. The State as-serts that a careful review of the record reveals that Defendant objected to the admissibility of Northcutt’s testimony on foundational grounds only. We review

the events at trial and the circumstances surrounding Defendant’s objection.{13} On direct examination, Officer Northcutttestifiedthathehadbeenonduty the night of the shooting, during which he interviewed Defendant and his two companions. He explained that he read Defendant his Miranda rightspriortoquestioninghim.OfficerNorthcutt also stated that, in his opinion, Defendant understood his rights. The State asked whether Defendant admit-ted involvement in the incident at 2409 NorthMesaandaskedOfficerNorthcutt,“What did [Defendant] eventually say about how he got involved?” Defendant objected at this point stating, “Your honor, unless he’s [going to] introduce the statement, the court needs to rule on admissibility.” The court appeared confused by this objection and said, “Uh . . . well . . . [State], I’ll allow you to establish or lay some more foundation if you’d like in regard to a knowing and voluntary statement” by Defendant. The State proceeded to inquire further about whether Defendant had been properly Mirandized. Afterwards, the State ad-dressed the court and stated, “I believe that’ssufficientfoundation,yourhonor.”The court agreed and directed the State to “proceed.” Defendant made no further objection.{14} Defendant cites the portion of the record discussed above and claims thatheobjected toOfficerNorthcutt’sstatements “arguing that the foundation for a valid and voluntary waiver of his Miranda rights had not been laid” and goes on to argue that the district court should have concluded that his state-ments were involuntary and suppressed OfficerNorthcutt’s testimony.At trial,Defendant did not, however, raise the issue of voluntariness and did not request suppression. He made only a founda-tional objection as towhetherOfficerNorthcutt complied with the procedural requirements of Miranda. On appeal, Defendant conflates the necessity forMiranda warnings with the voluntariness of the statement.{15} In State v. Gallegos, 92 N.M. 336, 340, 587 P.2d 1347, 1351 (Ct. App. 1978), we observed that the “[Miranda] requirements for admissibility and the ‘voluntariness’ requirements for admis-sibility are separate concepts.” This dis-tinction arises from the fact that Miranda not only requires that a defendant’s statements be voluntary to be admis-sible, but also holds that admissibility

is independently contingent on officercompliance with the strict procedural rules articulated in Miranda. Gallegos, 92 N.M. at 340, 587 P.2d at 1351. We provided the following explanation:

[U]nless law enforcement offi-cersgivecertainspecifiedwarn-ings before questioning a person in custody, and follow certain specifiedprocedures during thecourse of any subsequent inter-rogation, any statement made by the person in custody cannot over his objection be admitted in evi-dence against him as a defendant at trial, even though the statement may in fact be wholly voluntary.

Id.{16} At his trial, Defendant raised a foundational objection implicating the Miranda procedural requirements. On appeal, he argues about the voluntariness requirements. This latter ground was not raised or argued below and will not be reviewed. See Rule 12-216(A) NMRA (“To preserve a question for review it must appear that a ruling or decision by the district court was fairly invoked[.]”). Defendant takes no issue with the court’s determination that an adequate foundation was laid as to the Miranda procedural requirements. As a result, we proceed to the next evidentiary issue on appeal.{17} Defendant’s second evidentiary argument concerns the district court’s decision to exclude evidence pertaining to the Chavez County high speed pursuit policy and to also exclude any evidence relating to the deputy’s compliance with that policy. As we understand Defendant’s argument on appeal, he is asking us to hold that he should not have been convicted of aggravatedfleeingbecausethedeputywhopursued him violated the Chavez County high speed pursuit policy.{18} Defendant appears to acknowledge that this argument is contrary to the major-ity opinion in Padilla where our Supreme Courtconcludedthatofficercompliancewith the Law Enforcement Safe Pursuit Act, NMSA 1978, Sections 29-20-1 to -4 (2003), or a local policy adopted thereunder, is not an essential element of thecrimeofaggravatedfleeing.Padilla, 2008-NMSC-006, ¶¶ 8, 34. He asks us to ignore the majority opinion and to adopt the dissenting opinion in Padilla. We decline to do so. See State v. Swick, 2010-NMCA-098, ¶ 21, 148 N.M. 895, 242 P.3d 462 (“Defendant urges this Court to adopt the position of the dissenting justices. This we cannot do.”), cert. granted, 2010-NM-


CERT-010, 149 N.M. 65, 243 P.3d 1147; see also State v. Glascock, 2008-NMCA-006, ¶ 26, 143 N.M. 328, 176 P.3d 317 (noting that the Court of Appeals is bound by Supreme Court precedent), cert. quashed, 2009-NMCERT-006, 146 N.M. 734, 215 P.3d 43.Directed Verdict{19} Defendant next argues that the dis-trict court erred in denying his motion for directed verdict as to both charges and asks this Court to reverse his convictions. “The question presented by a directed verdict motion is whether there was substantial evidence to support the charge.” State v. Rael, 1999-NMCA-068, ¶ 5, 127 N.M. 347, 981 P.2d 280 (internal quotation marksandcitationomitted).Specifically,we inquire “whether substantial evidence exists of either a direct or circumstan-tial nature to support a verdict of guilty beyond a reasonable doubt with respect to each element of the crime.” State v. Armijo, 1997-NMCA-080, ¶ 16, 123 N.M. 690, 944 P.2d 919. “We do not weigh evi-dence or substitute our judgment for that of the trial court so long as the jury was presented with such relevant evidence as a reasonable mind might accept as adequate to support [its verdict].” State v. Schackow, 2006-NMCA-123, ¶ 8, 140 N.M. 506, 143 P.3d 745 (alteration in original) (internal quotation marks and citation omitted). We analyze the evidence in light of the jury instructions submitted at trial. State v. Barreras, 2007-NMCA-067, ¶ 3, 141 N.M. 653, 159 P.3d 1138.Aggravated Fleeing{20} The jury was instructed that the es-sentialelementsofaggravatedfleeingofalawenforcementofficerinclude:

1. The defendant operated a motor vehicle;

2. The defendant drove will-fully and carelessly in a manner that endangered the life of an-other person;

3. The defendant had been given a visual or audible signal to stop, either by light, siren, or other signal by a uniformed law enforcementofficer;

4. The uniformed law en-forcement officer was in an appropriately marked law en-forcement vehicle engaged in pursuit[.]

Defendant takes issue only with the evidence as to element two; he does not contest the evidence underlying the other elements.Specifically,Defendantclaimsthattherewasinsufficientevidencethathe

drove carelessly and claims that there was insufficientevidencethatheendangeredthe life of another person.{21} The evidence at trial established that Defendant drove at speeds exceeding 100 miles per hour through residential areas of Roswell, New Mexico, and ignored and drove through several stop signs also while traveling at excessive speeds. The chase concluded only after Defendant struck a curb and damaged his vehicle render-ingitimmobile.Wehavelittledifficultyconcluding, given these facts, that there wassufficientevidenceDefendant“drovewillfully and carelessly.”{22} We also have little trouble conclud-ing that Defendant endangered “the life of another person” by his conduct. See § 30-22-1.1(A). The lives of his passengers, Daniel and Mario, and the life of the dep-uty sheriff were placed in jeopardy during the chase. See Padilla, 2008-NMSC-006, ¶ 17 (relying on the fact that the defendant endangered his passengers and the pursu-ingofficerduringahighspeedchase inreaching the conclusion that all of the elementsofaggravatedfleeingweremet).We see no error with the district court’s decision to deny the directed verdict mo-tionastotheaggravatedfleeingcharge.Conspiracy{23} Defendant was convicted of con-spiracy in violation of Section 30-28-2. A conspiracy “consists of knowingly combining with another for the purpose of committing a felony.” Section 30-28-2(A). The underlying felony here is “[s]hooting at a dwelling” in violation of NMSA 1978, Section 30-3-8(A) (1993). Defendant ar-guesonappealthattherewasinsufficientevidence to prove that he conspired to commit shooting at a dwelling. He makes twospecificclaimstosupportthisargu-ment. We address them in turn.{24} First, Defendant asserts that he had no reason to know that Villa’s trailer was occupied at the time of the shooting which, he claims, is an essential element of the offense of shooting at a dwelling. The State responds that Defendant has conflated shooting at a dwelling with shooting at an occupied building and asserts that knowledge of occupancy is not an essential element of shooting at a dwelling. We agree with the State.{25} Section 30-3-8(A) is violated when adefendantwillfullydischarges“afirearmat a dwelling or occupied building.” It is apparent that the “or” between the terms “dwelling” and “occupied building” operates in the disjunctive. A criminal defendant may violate the statute either by

shooting at a “dwelling” or by shooting at an “occupied building.” The uniform jury instruction associated with Section 30-3-8(A) bears this out. See UJI 14-340 NMRA (directing courts to determine whether the charge is shooting at a dwelling or shoot-ing at an occupied building and instructing courts to use only the applicable alterna-tive).{26} In this case, the jury was properly in-structed at Defendant’s trial that shooting at a dwelling consists of “1. The defendant willfullyshotafirearmatadwelling;2.The defendant knew that the building was a dwelling[.]” See UJI 14-340. In addition, the jury was properly instructed that the term “dwelling” means “any structure, any part of which is customarily used as living quarters.” See id. Use Note 1; UJI 14-1631 NMRA. Defendant raises no issues as to whether Villa’s trailer constituted a dwell-ing. Rather, he focuses on the second part of Section 30-3-8—the portion relating to the crime of shooting at an occupied build-ing. He relies on State v. Elmquist, 114 N.M. 551, 844 P.2d 131 (Ct. App. 1992), and he argues that knowledge of occupa-tion is an essential element of shooting at a dwelling. We disagree. Knowledge of occupation is not an element of shooting at a dwelling. See UJI 14-340. Moreover, Elmquist is inapposite. There, we held that shooting at an occupied building requires that “the accused knew or should have known that the building at which they were shooting was occupied” at the time of the shooting. Elmquist, 114 N.M. at 554-55, 844 P.2d at 134-35. However, De-fendant was not charged with conspiracy to commit shooting an occupied building. Rather he was charged with conspiracy to shootafirearmatadwelling,andthereisno occupancy requirement for this charge.{27} Defendant also claims that the evidencewasinsufficienttosupportthecharge of conspiracy to commit shoot-ing at a dwelling because there was no evidence he “willfully sought to shoot at the trailer.” “In order to be convicted of conspiracy, the defendant must have the requisite intent to agree and the intent to commit the offense that is the object of the conspiracy.” State v. Varela, 1999-NMSC-045, ¶ 42, 128 N.M. 454, 993 P.2d 1280. “The requisite culpability of the crime of shooting at a dwelling, as stated in Section 30-3-8 and repeated in the jury instruc-tion, is willful . . . behavior. Under New Mexico law, willful conduct is conscious or intentional conduct.” Varela, 1999-NMSC-045, ¶ 42. Here, Defendant will-fully agreed to drive Mario and Daniel to


“do some shootings” and willfully drove to the location Mario selected—Villa’s trailer—knowing full well what Mario intended to do when they arrived at the destination.This evidence is sufficientto prove Defendant had the requisite intent to agree and the intent to commit shooting at a dwelling, the object of the conspiracy charge for which Defendant was convicted.Jury Instructions{28} Defendant raises two issues with respect to the jury instructions proffered at his trial. He argues that the district court erred in refusing to instruct the jury that Defendant was denied his “rights” to post-arrest phone calls as provided by Section 31-1-5(A)andclaims,forthefirsttimeonappeal, that the instruction proffered on the conspiracychargewasflawed.

The standard of review we ap-ply to jury instructions depends on whether the issue has been preserved. If the error has been preserved[,] we review the in-structions for reversible error. If not, we review for fundamental error. Under both standards we seek to determine whether a rea-sonable juror would have been confused or misdirected by the jury instruction.

State v. Bennally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134 (internal quotation marks and citations omitted). We address Defendant’s arguments in turn.{29} Section 31-1-5(A) provides that “[f]ollowing arrest, any person accused of a

crime is entitled to have reasonable op-portunity to make three telephone calls.” Defendant asserted below, as he does on appeal, that he was denied the “rights” extended to him by this statute. Accord-ingly, he claims that he was entitled to an instruction informing the jury of this deprivation because such an instruction “would have been helpful to the defense in that it would have permitted the jury to consider the violation of the statute in as-sessing the voluntariness of [Defendant’s post-arrest] statement[s].” Defendant asks for a new trial at which such an instruction can be issued.{30} Whether Defendant was entitled to an instruction based on Section 31-1-5(A) was preserved and, therefore, reviewed for reversible error. We have little trouble concluding that Defendant failed to estab-lish error of any kind. Section 31-1-5(A) merely states that following arrest, any person accused of a crime is “entitled” to a “reasonable opportunity” to make three calls. Contrary to Defendant’s arguments, the statute neither provides a criminal defendant with a “right” to make three calls—the statute speaks merely of an entitlement—nor addresses the officer’sduty to inform a criminal defendant of his or her entitlement to make those calls. In addition, the statute has no bearing on the issue of Defendant’s culpability for the offense for which he was charged. See Jackson v. State, 100 N.M. 487, 489, 672 P.2d 660, 662 (1983) (concluding that absence in jury instruction of an essential element of the crime is reversible error).

Finally, it is unclear how Section 31-1-5(A)fits intoDefendant’s theoryof hiscase. State v. Jernigan, 2006-NMSC-003, ¶ 3, 139 N.M. 1, 127 P.3d 537 (“Failure to instruct a jury on a defendant’s theory of the case is reversible error.”). Defendant claims he was entitled to the instruction so as to bolster his assertion that his post-arrest statements were involuntary. The issue of the voluntariness of Defendant’s post-arrest statements, however, was not raised at trial. For these reasons, we con-clude that the court did not err in rejecting Defendant’s request for an instruction concerning Section 31-1-5(A).{31} Turning to Defendant’s second argument on appeal concerning the in-structions, Defendant claims that the court committed fundamental error in failing to instruct the jury that Defendant must have known Villa’s trailer was occupied at the time of the shooting. We addressed and rejected this argument in the portion of this opinion upholding the district court’s denial of the motion for directed verdict as to the charge of conspiracy. The analysis set out there applies here.CONCLUSION{32} For the foregoing reasons, we af-firm.{33} IT IS SO ORDERED. CELIA FOY CASTILLO,

Chief Judge

WE CONCUR:LINDA M. VANZI, JudgeTIMOTHY L. GARCIA, Judge


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Attorney Positions -1st Judicial District AttorneyThe First Judicial District Attorney’s Office has an immediate position for an experienced prosecutor to handle complex white collar and public corruption cases. Salary will be based upon experience and the District Attorney Personnel and Compensation Plan. Please send resume and letter of interest to Doug Couleur, Chief Deputy District Attorney, PO Box 2041, Santa Fe, NM 87504, or via e-mail to [email protected].

CYFD AttorneysThe Children, Youth and Families Department is seeking to fill two vacant Children’s Court Attorney positions. The attorneys will represent the Department in abuse/neglect, termination of parental rights proceedings and related mat-ters. The Attorney-Operational positions have a salary range of $38-$67K annually, depend-ing on experience and qualifications. The ideal candidates will have experience in the practice of law totaling at least four years. New Mexico licensure is required. One of the positions will be housed in Albuquerque and cover primarily Bernalillo County cases. The second position will be housed in either Los Lunas or Rio Ran-cho and coverage will include both Valencia and Sandoval Counties. Benefits include medical, dental, vision, paid vacation, and a retirement package. To apply for these positions go to www.state.nm.us/spo/ and click on JOBS, then click on Apply for a Job Online. The State of New Mexico is an EOE. Please provide a resume and list of references and direct questions to the following: David Brainerd (Valencia/Sandoval position) at (505) 327-5316 ext. 1114 or e-mail [email protected]. Deborah Gray (Albuquerque position) at (505)841-7819 or e-mail [email protected] ;

Domestic Relations Hearing OfficerThe Eighth Judicial District Court is accepting applications for a full-time Domestic Relations Hearing Officer. Candidates should have the following minimum qualifications: 1. Be an attorney licensed and in good standing with the State Bar of NM; 2. Have a minimum of 5 years experience in the practice of law; 3. At least 20% of that practice must have been in family law or domestic relations matters. Full time Domestic Relations Hearing Officers are not permitted to engage in the private practice of law or in any employment, occupation or business interfering with or inconsistent with the discharge of their duties as a full-time hearing officer. The salary for this position is: $89,305.00 per year plus generous benefits. Interested persons should submit a letter of interest, a resume, writing sample and a list of three professional references to: Sarah C. Backus, Chief Judge, 105 Albright Street, Suite N, Taos, NM 87571. Closing Date: September 30, 2011. The Judicial Branch of New Mexico State Government is an Equal Opportunity Employer

AttorneyThree attorney firm in Socorro, NM seeks recent graduate with interests in criminal defense, domestic relations and general civil procedure. Successful applicant must relocate to Socorro. Practice covers the entire Seventh Judicial District. Position offers fast track to litigation experience, supported by senior partners with a combined 70+ years experience. Please send resume, writing sample, transcripts and salary request to Deschamps & Kortemeier Law Offices, P.C., Hiring Mgr., POB 389, Socorro, NM 87801.

Want to Work Less? Looking for Established Personal Injury Lawyer Who Wants to Retire or Slow DownPlaintiff’s personal injury firm is looking to combine its practice with an established per-sonal injury or work comp lawyer who wants to cut back on their hours. Please e-mail [email protected].

Associate AttorneyButt Thornton & Baehr P.C. an AV-rated Albuquerque defense firm, seeks an associate attorney with Workers’ Compensation Litiga-tion experience. If interested please submit letter of interest and resume to: Butt Thornton & Baehr, P.O. Box 3170, Albuquerque, NM 87190. Attn: Agnes Fuentevilla Padilla or by email at: [email protected].

Attorney IVJob ID: 2059Location: Albuquerque, NMApplications must be submitted by October 23, 2011. PREFERENCES: The ideal candidate will have twelve to fifteen years of experience handling complex environmental, commercial and other litigation. Additionally, the selected applicant will have experience supervising and managing attorneys, paralegals and other professionals in complex litigation. SUM-MARY: Functions as a project manager and as a supervisor of legal staff and of outside coun-sel; Provides legal advice to management on complex litigation, particularly environmental litigation; Provides legal advice to management on legal issues concerning the rights and ob-ligations of the Company. ESSENTIAL DU-TIES AND RESPONSIBILITIES: Manages complex litigations, including environmental litigation, involving the Company; Supervises and manages other attorneys including out-side counsel who represent the Company in complex litigation; Supervises and manages paralegals and other professionals in claims and complex litigation; Works independently in developing and/or supervising litigation strategies and tactics; Operates independently and with confidence to provide legal advice and counsel to officers and other business managers regarding legal matters; Coordinates litigation or other legal strategies with overall business objectives; Works well with other profession-als, colleagues, supervisors and subordinates. MINIMUM EDUCATION AND/OR EX-PERIENCE; Juris doctorate degree from an accredited law school, with a minimum seven to nine years of experience in the actual prac-tice of law, twelve to fifteen years experience is highly preferred. Experience supervising at-torneys and other professional staff is required. Extensive first chair litigation experience Complex environmental litigation experience. Demonstrated professional and/or community involvement. To apply go to www.pnm.com/careers and read a full job description, register, upload a resume and answer all posting ques-tions. Deadline is no later than October 23, 2011. PNM is an EEO/AA employer. Women, minorities, disabled individuals and veterans are encouraged to apply.

Assistant Trial AttorneyThe Office of 11th Judicial District Attorney, Division I, in Farmington, NM is accepting re-sumes for positions of Assistant Trial Attorney to Deputy District Attorney. Salary ranging from $46,062 - $80,192 DOE. Please send resume to: Jodie Gabehart, 710 E. 20th St., Farmington, NM 87401. [email protected] Equal Opportunity Employer.

AttorneysCollegial work environment and Competitive Compensation available for attorneys with over 7 years experience in Family Law, Probate, Estate Planning, Guardianships, and/or Civil Litigation. Strong writing, research, computer, and litigation experience required. All replies will be maintained as confidential. Send re-sume and references to [email protected].

Attorney NeededAttorney with criminal history experience to share office space and assist attorney with mis-demeanor, felony, state and federal cases. Best location in Santa Fe, less than one block from district court house. Includes office, secretarial assistance, parking, phone, copy machine, fax machine, etc. Please contact Jeff Jones at (505) 982-5220.



http://www.state.nm.us/spo

http://www.state.nm.us/spo




http://www.pnm.com



Lawyer OfficeLawyer office + furnished space for assistant/storage at Morgan/Word Building, 500 Tijeras NW in downtown Albuquerque. Ten attorneys with assorted practices provide good collegial-ity and case referrals. Receptionist, on-site parking, conference rooms, telephone/copier/fax/scan equipment with client coding/billing system, tv/dvd, stocked kitchen. Contact Ilene @ 842-1905.

Highly Desirable Downtown Professional Office Office available (furnished or unfurnished). Bright, spacious area shared with law firm. Includes separate space for legal assistant, lovely reception area, use of conference room and small kitchen. State of the art telephones, high speed internet and receptionist services available. $600—secure garage parking @55 per month. Located downtown NM Bank and Trust Building (4th and Gold). Call Liz @ 505-235-8854.

for Sale

Nurse ParalegalExperienced paralegal with extensive clinical experience available to assist with prepara-tion of medical malpractice cases. Analysis of records and medical issues. Preparation of demand packages, discovery, and pleadings. Fast, reliable service. [email protected] or (505) 999-7099.

Voice CoachMaximize effectiveness. M.S., CCC-SLP, Warner Bros Recording Artist 505.345.3820, [email protected]

Santa Fe Style Offices Near CourthouseSanta Fe style offices, walking distance to courthouse and Georgia O’Keeffe Museum, great parking, skylights, outdoor courtyards. Three suites: 482 square feet; 1,258 square feet; and 2,039 square feet. 239 Johnson Street. Call Jim Smith or Carl Condit for details and flyer: (505) 988-4418.

Offices for Sale/Lease. Outstanding LocationDowntown Santa Fe. Only two blocks from new courthouse! 5,906 SF for sale. Third floor. Very attractive offices. Fully leased until 9/30/2013. Ideal for owner/user. or investor. NOI: $130,350. Asking $1,800,000. Also, at-tractive second floor offices for lease. 4,161 SF.$13.00 to $19.00/SF modified gross. Contact Bruce Golden. 505-247-0444. Berger Briggs RE & Insurance.

Office Space WantedExperienced Consumer Bankruptcy and Con-sumer Rights Attorney seeks to share office space with established ABQ/SF lawyers or law firm. Former state assistant attorney general. Deborah M. DeMack, 9400 Holly Ave., NE, Albuquerque, NM 87122. (505) 471-3302; [email protected].

Contract ParalegalContract paralegal experienced in Adminis-trative, Construction, Environmental/Water, PI and RE Law. [email protected] 505.453.3360

Research, Writing & Trial Preparation Need assistance with complex litigation or appellate briefs? Let me assist you with brief writing and trial preparation. Experience in federal and state courts. Licensed to practice in NM since 1986. Contract attorney since 1997. Reasonable rates. References available. Diane Donaghy (505)281-3514; [email protected]

Available for Receivership AssignmentsWe are an Accredited Management Organi-zation, (AMO), one of the few in the state. We provide professional management and consultation in a responsive accountable way in connection with receiverships, bankruptcies,foreclosures and other kinds of disputes. Call Dan Hernandez or John Menicucci at Berger-Briggs Real Estate & Insurance, Inc. for information (505) 274-0444.

Briefs, Research, AppealsBriefs, Research, Appeals, leave the writing to me Experienced, reasonable [email protected] (505) 281 6797

For SaleMahogany replica of George Washington’s stand up desk. Mint condition. $2,500. Call 505-345-7659.

Office Space For SubleaseVery attractive professional office space in desirable Journal Center area available for sublease. Large office with approx. dimensions 12’x 17.5’ in approx. 3979rsf Suite shared with other law firms with reception area, conference room, secretarial space, phones, copier, fax, scanner, kitchenette and security system. Off-street parking, utilities and janitorial service included. Opportunity to work in a pleasant, collegial environment. Please contact Georgia at (505) 244-0011 or email [email protected].

Legal Secretary/AssistantLegal secretary/assistant w/extensive commer-cial civil litigation and practice management experience for established law firm. Seeking professional, organized, and highly skilled individual with attention to detail. Excellent computer/word processing skills required. All inquiries confidential. Competitive benefits. Office Manager, Atkinson, Thal, & Baker, P.C. 201 Third Street NW, Suite 1850, Albu-querque, NM 87102 or Fax to 505-764-8374..

Personal Injury ParalegalPersonal Injury Paralegal needed for fast-paced, congenial law firm. Energetic, friendly indi-vidual who works well independently and with others is desirable. Drafting capability needed. Must have significant experience in Plaintiff’s Personal Injury litigation and federal court. Compensation DOE. Please mail resume to POB 92860 ABQ NM 87199 Attn: Box D

Legal Secretary/Assistant PositionArchibeque Law Firm, an AV rated insurance defense/civil litigation firm, is seeking a legal secretary/assistant for its Albuquerque office. Ideal candidate will have 3-5 years commer-cial civil litigation and practice management experience. Excellent computer/word process-ing skills also required. Candidate must be professional, organized and highly skilled with attention to detail. Must possess excellent cus-tomer service skills and be able to multi-task, handling high volume work, representing two attorneys. Competitive salary and benefits available. Please email letter of interest and resume including three professional references to [email protected].

www.nmbar.org

office Space

ServiceS

It’s Our House, But Their HomeResidential Assisted Living, Albuquerque N.E. Heights. State Licensed, 1:9 Ratio. RN Owned and Supervised. Professional References. Lana Hutchison 306-1501

State of the Art Professional Office2937SF, top floor, glass entry, exceptionally well improved and appointed reception, offices, kitchen, and conference room. Building sig-nage available. 3 to 5 year lease. Prime Uptown location with high visibility and easy access to I-40. Bank of America, companion restaurants, shopping, extensive landscaping, ample park-ing, full-service lease. Comcast Business Class is now available at Uptown Square (includes High-Speed Internet, Telephone and Televi-sion). Ron Nelson 883-9662. Uptown Square







National Association of Hearing O� cials2011 ANNUAL PROFESSIONAL DEVELOPMENT CONFERENCE

ADMINISTRATIVE ADJUDICATION:Keeping Focused in Challenging Times

AN EXCELLENT OPPORTUNITY TO LEARN WHILE YOU ENJOY“THE CITY DIFFERENT”

WHO SHOULD ATTEND?• Hearing Offi cers• Administrative Law Judges• Attorneys• Paralegals• Mediators/Arbitrators• Hearing Representatives or Advocates

•Hearing Program Managers

Events include a reception on Sunday evening at the beautiful New Mexico History Museum and a banquet Tuesday evening on the La Terraza Level of the La Fonda Hotel overlooking downtown Santa Fe

Learn more at www.naho.org

November 13 - 16, 2011LaFonda on the PlazaSanta Fe, New Mexico

New Mexico Attorneys: Application has been made for CLE credits in New Mexico.

TAKE ADVANTAGE OF THE EXCELLENT CONFERENCE ROOM RATE OF $83 PER

NIGHT PLUS APPLICABLE TAXES FOR SINGLE/DOUBLE

OCCUPANCY

Featuring 20 Courses onTopics of General and

Specialized Administrative Law and Hearings Presentedby an Outstanding Faculty of

19 SpeakersOpening Keynote - Monday, November 14GARY KINGNEW MEXICO ATTORNEY GENERALLuncheon - Monday, November 14CHIEF JUSTICE CHARLES DANIELSNEW MEXICO SUPREME COURTClosing Keynote - Wednesday, November 16CELIA FOY CASTILLO, CHIEF JUDGENEW MEXICO COURT OF APPEALS

Please join the Universi ty of New Mexico School of Law & its Alumni/ae Associat ion in honoring

Visit http://lawschool.unm.edu/alumni/events/2011/daad.php

or contact us at [email protected] or (505) 277-1457

UNM Student Union Building Ballroom 6:00 PM-Reception

7:00 PM-Dinner & Awards Presentation

Friday, November 4th, 2011

2011 Honorees:

Catherine T. GoldbergLaw Class of 1975

Peter C. MalleryLaw Class of 1968

Leo M. RomeroFormer Dean & Prof. Emeritus

2 0 1 1 D i s t i n g u i s h e d A c h i e v e m e n t A w a r d s D i n n e r

http://www.naho.org

http://lawschool.unm.edu/alumni/events/2011/daad.php


ONE WEEK IN HAWAII $100 per ticket*

airfare for two and a beautiful Hawaiian rental home

* Ra� e to bene� t 2012 Mock Trial National Competition being held in Albuquerque

* Only 500 tickets are being sold (123 still available)

* Drawing will be held December 1, 2011

NEW MEXICO STATE BAR FOUNDATION

For more information, contact: Kate Mulqueen, Director of Development

505.797.6064 • [email protected]


Documents

September 28, 2011 • Volume 50, No. 38 - State Bar of New · PDF file · 2017-09-06Bar Bulletin - September 28, 2011 - Volume 50, No. 38 1 Special Insert: CLE ... Marc Sommers,