9/24 - State Bar

Transcription

9/24 - State Bar

September 24, 2014 • Volume 53, No. 39
Inside This Issue
Table of Contents..................................................... 3
N.M. Board of Legal Specialization
Comments Solicited................................................ 4
Vacancy on the Judicial Performance
Evaluation Commission ........................................ 4
Fifth Judicial District Court
Investiture Ceremony of Judge Kea W. Riggs...... 4
Nominate an NREEL Lawyer of the Year............ 5
Young Lawyers Division
2014 Election Notice............................................... 5
Diversity Kick-off Event a Success........................ 7
Expired Court Monitor Certifications................. 8
Clerk’s Certificates................................................. 14
From the New Mexico Supreme Court
2014-NMSC-027, No. 34,150:
Kimbrell v. Kimbrell......................................... 18
From the New Mexico Court of Appeals
2014-NMCA-078, No. 32,559:
Buke, LLC v.
Cross Country Auto Sales, LLC..................... 22
2014-NMCA-079, No. 32,625:
Galetti v. Reeve.................................................. 31
2014-NMCA-080, No. 32,650:
State v. Tarin...................................................... 34
Forest Treasure by Katrina Lum (see page 3)
Weems Art Gallery
CLE Planner
2014 Health Law Symposium
5.5 G
Thursday, Oct. 2, 2014 • State Bar Center, Albuquerque
Oct. 2
Standard Fee: $199
Health Law Section members, government, legal services attorneys,
and Paralegal Division members: $169
Co-sponsor: Health Law Section
8:30 a.m.
9 a.m.
Registration
New Rules Regarding Mental Health Treatment
Guardianship
J. Gabrielle Sanchez-Sandoval, general counsel, New
Mexico Department of Health; Nancy Koenigsberg,
legal director, Disability Rights New Mexico
10:30
Break
10:45 a.m. Healthcare Antitrust Law
Katie Reilly, of counsel, Wheeler, Trigg, O’Donnell,
Denver
11:45 a.m. Lunch (provided at the State Bar Center)
Health Law Section Annual Meeting
1 p.m.
2 p.m.
2:15 p.m.
3:15 p.m.
3:30 p.m.
4:30 p.m.
Friday, Oct. 3, 2014 • State Bar Center, Albuquerque
Oct. 3
Standard Fee: $219
Employment and Labor Law Section members, government,
legal services attorneys, and Paralegal Division members: $189
Co-sponsor: Employment and Labor Law Section
Registration
Federal Employment Case Law
and Regulatory Update
Anne Noel Occhialino, Appellate Attorney, Office of
General Counsel at the Equal Employment Opportunity
Commission, Washington, D.C.
9:45 a.m. State Employment Law and Legislative Update
Victor Montoya, Jackson Lewis, P.C., Albuquerque
10:15 a.m. Break
10:30 a.m. The Affordable Care Act: Health Savings
Accounts, High-deductible Health Plans and
Benefits, and the Many, Many Ways to Sink a Ship
Kathy Barrow, Jackson Lewis, P.C., Rapid City, S.D.
11:45 a.m. Lunch (provided at the State Bar Center)
Employment and Labor Law Annual Meeting
1p.m.
2:30 pm
2:45 p.m.
3:15 p.m.
4:15 p.m.
at the standard fee
Update on Qui Tam/Government Investigations
Raul Torrez, Torrez Law & Strategy LLC
Break
Supervision Issues Regarding Physician
Extenders
Catie Russell and Ryan Harrigan, SaucedoChavez, P.C.
Break
Affordable Care Act Update
Paige Duhamel, staff attorney, Southwest Women’s
Law Center
Adjournment
2014 Employment and Labor Law Institute
8 a.m.
8:30 a.m.
also available via
LIVE WEBCAST
4.5 G
1.5 EP
also available via
LIVE WEBCAST
at the standard fee
Judges Panel: Ethics in E-Discovery: Litigation
Holds, and the Duty to Preserve and Produce
Electronically Stored Evidence
U.S. District Judge James O. Browning, and U.S.
Magistrate Judge Gregory B. Wormuth. Moderated by
Erin Langenwalter, Chair, Employment and Labor Law
Section.
Break
Labor Law Update: Northwestern University
and Beyond
Stephen Curtice, Youtz & Valdez, P.C., Albuquerque
Hot Topics: Social Media and Employment Law
Erin Langenwalter, Chair, Employment and
Labor Law Section
Adjournment
All live seminars are held at the State Bar Center, 5121 Masthead NE, Albuquerque. They include course materials,
CLE credit and filing fees for New Mexico and Texas. Full-day programs also include continental breakfast, breaks and buffet lunch.
Register online at www.nmbarcle.org
or call 505-797-6020.
CENTER FOR LEGAL EDUCATION
2
Bar Bulletin - September 24, 2014 - Volume 53, No. 39
Table of Contents
Officers, Board of Bar Commissioners
Erika Anderson, President
Martha Chicoski, President-Elect
J. Brent Moore, Vice President
Scotty A. Holloman, Secretary-Treasurer
Andrew J. Cloutier, Immediate Past President
Board of Editors
Ian Bezpalko, Chair Kristin J. Dalton
Jocelyn C. Drennan
Jennifer C. Esquibel
Bruce Herr
George C. Kraehe
Maureen S. Moore
Tiffany L. Sanchez
Mark Standridge
Joseph Patrick Turk
State Bar Staff
Executive Director Joe Conte
Managing Editor D.D. Wolohan
505-797-6039 • [email protected]
Communications Coordinator
Evann Kleinschmidt
Graphic Designer Julie Schwartz
[email protected]
Account Executive Marcia C. Ulibarri
Digital Print Center
Manager Brian Sanchez
Assistant Michael Rizzo
©2014, State Bar of New Mexico. No part of this publication 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 24, 2014, Vol. 53, No. 39
Notices .................................................................................................................................................................4
Legal Education Calendar..............................................................................................................................9
Writs of Certiorari .......................................................................................................................................... 11
List of Court of Appeals’ Opinions............................................................................................................ 13
Clerk’s Certificates.......................................................................................................................................... 14
Recent Rule-Making Activity...................................................................................................................... 17
Opinions
2014-NMSC-027, No. 34,150: Kimbrell v. Kimbrell.................................................................... 18
2014-NMCA-078, No. 32,559: Buke, LLC v. Cross Country Auto Sales, LLC....................... 22
2014-NMCA-079, No. 32,625: Galetti v. Reeve............................................................................ 31
2014-NMCA-080, No. 32,650: State v. Tarin................................................................................. 34
Advertising.............................................................................................................................................. 37
Meetings
State Bar Workshops
September
September
25
Natural Resources, Energy and
Environmental Law Section BOD,
Noon, via teleconference
24
Consumer Debt/Bankruptcy Workshop
6 p.m., State Bar Center
27
Consumer Debt/Bankruptcy Workshop,
9 a.m., The Law Office of Kenneth Egan,
Las Cruces
25
Senior Lawyers Division BOD,
26
Immigration Law Section BOD,
October
1
Divorce Options Workshop
October
1
Employment and Labor Law Section BOD,
Noon, State Bar Center
2
Health Law Section BOD,
9 a.m., via teleconference
7
Bankruptcy Law Section BOD,
Noon, U.S. Bankruptcy Court
8
Children’s Law Section BOD,
8
Taxation Section BOD,
11 a.m., via teleconference
1
Civil Legal Fair
10 a.m.–1 p.m., Second Judicial District
Court, Third Floor Conference Room,
Albuquerque
14
Civil Legal Clinic for Veterans
9 a.m.–noon, Raymond G. Murphy VA
Medical Center, SCI Meeting Room,
Albuquerque
27
Consumer Debt/Bankruptcy Workshop,
9 a.m., The Law Office of Kenneth Egan,
Las Cruces
Cover Artist Although her college education was based in biochemical engineering, Katrina Lum retained a creative
side that directed her endeavors more than she realized. When she stumbled upon jewelry design, a world of creativity
opened up to her. Lum incorporates her world travels and scientific background into her artistry. Her jewelry begins as
original drawings that she hand carves and impresses into precious metal clays. Images of nature, animals, and world
cultures dominate her designs. To view more of her work, visit www.katrinalum.com.
Bar Bulletin - September 24, 2014 - Volume 53, No. 39 3
Notices
Court News
N.M. Board of
Legal Specialization
Comments Solicited
The following attorneys are applying for
certification as a specialist in the areas of
law identified. Application is made under
the New Mexico Board of Legal Specialization, Rules 19-101 through 19-312
NMRA, which provide that the names of
those seeking to qualify shall be released
for publication. Further, attorneys and
others are encouraged to comment upon
any of the applicants’ qualifications within
30 days after the publication of this notice.
Address comments to New Mexico Board
of Legal Specialization, PO Box 93070,
Albuquerque, NM 87199.
Federal Indian Law
Carolyn J. Abeita
Natural Resources Law
Arnold J. Olsen
New Mexico Compilation
Commission
New Publications Available
The official print New Mexico Statutes
Annotated 1978® with compiled, annotated 2014 legislation is now available
exclusively through the New Mexico
Compilation Commission. The online
NMSA 1978 with new or amended sections effective in May and July was released
on the laws’ effective dates exclusively on
nmonesource.com. New Mexico Appellate
Reports®, Volume 5, also is available. The
official New Mexico Criminal and Traffic
Law Manual™ with DVD, relied on by law
enforcement, courts, district attorneys,
public defenders and criminal defense
lawyers, will be available later this month.
For more information, call 505-827-4821.
Judicial Performance
Evaluation Commission
Vacancy
The New Mexico Supreme Court has
requested the State Bar of New Mexico’s
assistance in filling a lawyer vacancy
on the Judicial Performance Evaluation
Commission. The nature of the Commission requires the Court to balance the
Commission’s membership by taking into
account gender, political affiliation, ethnicity and geographic diversity. The Court
is requesting the State Bar president to
nominate three female lawyers of diverse
ethnic backgrounds from the Second, 11th
4
Professionalism Tip
With respect to parties, lawyers, jurors, and witnesses:
I will do my best to ensure that court personnel act civilly and
professionally.
and 13th Judicial Districts from which the
Supreme Court shall select one member
to serve through Sept. 14, 2017. Members
interested in serving on the JPEC should
send a letter of interest and brief résumé
by Oct. 10 to Executive Director Joe Conte,
State Bar of New Mexico, PO Box 92860,
Albuquerque, NM 87199-2860; fax to 8283765; or email [email protected].
Fifth Judicial District Court
Judicial Nominees
The Judicial District Court Judicial
Nominating Commission convened
Sept. 11 in Lovington and completed its
evaluation of the one applicant for the
vacancy on the Fifth Judicial District
Court, Lea County. The Commission
recommends that the applicant’s name
be forwarded to Gov. Susana Martinez:
Lee A. Kirksey
Investiture Ceremony of
Judge Kea W. Riggs
Members of the legal community are
invited to attend the investiture ceremony
of Kea W. Riggs at 3 p.m. on Sept. 26 at the
Chaves County Courthouse, 400 North
Virginia Ave., Roswell. A reception will
follow immediately.
Reassignment of Cases to
Judge Kea W. Riggs
Effective Sept. 15, a mass reassignment
of cases has been occuring pursuant to
Supreme Court Rule 23-109. Judge Kea W.
Riggs is being assigned all cases previously
assigned to Judge Charles C. Currier, Division VIII. Pursuant to Supreme Court Rule
1-088.1, parties who have not yet exercised
a peremptory excusal will have 10 days
from Sept. 17 to excuse Judge Riggs.
Seventh Judicial District Court
Reassignment of Cases Due to the
Retirement of Judge Kase III
Due to the retirement of Judge Edmund H. Kase III, Judge Mercedes Murphy is assigned to his cases. Pursuant to
NMRA 1-088.1, parties who have not yet
exercised a peremptory excusal will have
until Oct. 23 to excuse the successor judge.
State Bar News
Attorney Support Groups
• Oct. 6, 5:30 p.m.
First United Methodist Church, 4th
and Lead SW, Albuquerque (The group
meets the first Monday of the month.)
• Oct. 13, 5:30 p.m.
UNM School of Law, 1117 Stanford NE,
Albuquerque, Room 1119 (The group
meets the second Monday of the month.)
• Oct. 20, 7:30 a.m.
First United Methodist Church, 4th
and Lead SW, Albuquerque (The group
meets the third Monday of the month.)
•For more information, contact Bill
Stratvert, 505-242-6845.
Board of Bar Commissioners
2014 Election Notice
Notice is hereby given that the 2014
election of six commissioners for the State
Bar of New Mexico will close at noon,
Dec. 1. Nominations of the office of bar
commissioner shall be by the written
petition of any 10 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. 17. Mail
nomination petitions to: Executive Director Joe Conte, State Bar of New Mexico, PO
Box 92860, Albuquerque, NM 87199-2860
or [email protected]. Expiring terms, the
nomination petition, and more information are available in the Sept. 17 (Vol. 53,
No. 38) Bar Bulletin or online at http://
www.nmbar.org/aboutsbnm/governance/
bbcelections.html. Direct inquiries to 505797-6099 or [email protected].
Business Law Section
Business Lawyer of the Year Award
The Business Law Section has issued
a call for nominations for the Business
Lawyer of the Year Award. Selection
criteria is available at http://www.nmbar.
org/AboutSBNM/sections/BusinessLaw/
bus_docs/criteriaforbusinesslawyeroft
heyear.pdf. Nominees do not have to be
section members, but membership is a
www.nmbar.org
positive factor. Nominations are due by
Oct. 1 and should be submitted to D.D.
Wolohan, [email protected].
Cuba Trip Rescheduled
for November
If you were contemplating joining State
Bar President Erika E. Anderson and the
New Mexico delegation to visit the legal
institutions of Havana, Cuba, but the October dates did not work out for you, you’re
in luck! The trip has been rescheduled for
Nov. 9–14. A parallel cultural excursion for
participants’ spouse or guest is available
to those who register. Full information is
available at www.professionalsabroad.org
or 1-877-298-9677.
Natural Resources, Energy and
Environmental Law Section
Nominations for NREEL
Lawyer of the Year
The Natural Resources, Energy and
Environmental Law Section will recognize
an NREEL Lawyer of the Year who, within
his or her practice and location, is the
model of a New Mexico natural resources,
energy, or environmental lawyer. Section
members may nominate as many candidates as they like. A nominee does not have
to be a member of the NREEL Section, but
membership shall be considered a positive factor. Go to http://www.nmbar.org/
AboutSBNM/sections/NaturalResources/
natres_docs/2014NREELAwardCriteria.
pdf for criteria. Deadline to submit applications to D.D. Wolohan, dwolohan@
nmbar.org, is Sept. 25. The plaque will be
awarded Oct. 10 at the section’s annual
meeting during its daylong CLE program.
New Mexico Medical Review
Commission
CLE Fee Waiver Opportunity
The New Mexico Medical Review
Commission, in an effort to recruit new
Commission members and to reward
existing members, is offering panelists the
opportunity to have their fee waived on the
NMMRC’s five-hour medical malpractice
CLE on Dec. 19. Those interested should
serve on four panels before Dec. 1. For
more information, call Judy Durzo at 505797-8540, or Ellen Kelly at 505-764-6019.
Paralegal Division
Luncheon CLE Series
The Paralegal Division invites members of the legal community to bring
a lunch and attend “Legal Malpractice
Litigation: Lawyers’ Duties and Policies
with Eroding Limits” (1.0 G) presented
by Josh Allison. The program will be held
from noon–1 p.m., Oct. 8, at the State Bar
Center (registration 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 Passalaqua,
505-247-0411, or Evonne Sanchez, 505222-9352. The program will be available
by teleconference to the State Bar Center
at three locations:
•Santa Fe: Montgomery & Andrews,
325 Paseo de Peralta, Santa Fe. Contact
Donna Ormerod, 505-570-4593.
•
R oswell: Atwood, Malone, Turner &
Sabin, 400 N. Pennsylvania, Ste. 1100.
Contact Tomma Shumate, 575-622-6221.
•Farmington: Titus & Murphy, 2021 E.
20th Street. Contact Shannon Krens,
505-326-6503.
Young Lawyers Division
2014 Election Notice
All 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 for oneyear terms (Jan. 1, 2015-Dec. 31, 2015):
director-at-large, position 2; directorat-large, position 4; region 2 director
(currently held by Joachim Marjon, 1st,
8th and 4th Judicial districts); region 4
director (currently held by Erin Atkins,
3rd, 6th, 7th and 12th Judicial districts).
For more information and to obtain a
nomination petition, visit www.nmbar.
org/aboutSBNM/YLD/YLDelection.
html. Petitions must be received in the
State Bar office by 5 p.m., Oct. 10. Should
any of the positions be contested, a ballot
link will be emailed to YLD members by
Nov. 1.
UNM
Law Library
Hours Through Dec. 13
Building & Circulation
Monday–Thursday 8 a.m.–10 p.m.
Friday
8 a.m.–6 p.m.
Saturday
8 a.m.–5 p.m.
Sunday
Noon–8 p.m.
Reference
Monday–Friday
9 a.m.–6 p.m.
Saturday–Sunday
Closed
Closures
Nov. 27–28: Thanksgiving
Featured
Member Benefit
Auto and Home Insurance
SBNM members receive an exclusive group
discount off already competitive rates, extra
savings for insuring both car and home, and
discounts based on driving experience, car
and home safety features and much more.
Contact Edward Kibbee,
(505) 323-6200 ext. 59184, or visit
www.libertymutual.com/edwardkibbee.
Other Bars
Albuquerque Bar Association
Monthly Membership Luncheon
The Albuquerque Bar Association’s
membership luncheon will be held at
noon, Oct. 7, at the Embassy Suites Hotel,
1000 Woodward Pl. NE, Albuquerque.
Secretary Hannah Skandara of the New
Mexico Public Education Department
will present “Public Education Update.”
Attorney Marty Esquivel will also present
“Education Law Update” (1.0 G) from
1:15–2:15 p.m. Register by noon, Oct. 3,
at www.abqbar.org.
Albuquerque Lawyers Club
Monthly Lunch Meeting
The Albuquerque Lawyers Club invites
members of the legal community to its
October lunch meeting. Mark Rudd will
New Mexico Lawyers
and Judges
Assistance Program
Help and support are only a phone call away.
24-Hour Helpline
Attorneys/Law Students
505-228-1948 • 800-860-4914
Judges
888-502-1289
www.nmbar.org/JLAP/JLAP.html
www.nmbar.org
present “Evolution of a Radical: From Outside to Inside the Fold.” The lunch meeting
will be held on at noon, Oct. 1 at Seasons
Rotisserie & Grill, 2031 Mountain Road,
NW, Albuquerque. Cost: Free to members;
$30 non-members. For more information,
email [email protected].
$35 for non-members. After the CLE, join
the NMHBA for a meet and greet from
5–7 p.m. at the winery. Appetizers will
be provided. For more information or to
register, visit www.nmhba.net. The CLE
and meet and greet are sponsored in part
by Allstate.
New Mexico Criminal Defense
Lawyers Association
Other neWs
Criminal Defense CLE in Roswell
The New Mexico Criminal Defense
Lawyers Association is holding the seminar “Southeastern N.M. Regional CLE”
(3.0 G, 1.0 EP) on Oct. 10 at the Roswell
Country Club in Roswell. Topics will
include proper police procedures and
investigation and an hour of ethics credit
focused on efficient case management
through the use of technology. To register,
visit www.nmcdla.org.
New Mexico Defense Lawyers
Association
Annual Awards Luncheon
and Meeting
The New Mexico Defense Lawyers
Association will present its 2014 Defense
Lawyer of the Year Award to Stephen G.
French of French & Associates, PC, and
the 2014 Young Lawyer of the Year Award
to Alicia M. Santos of O’Brien & Padilla,
PC, at its annual awards luncheon on Oct.
3 at the Hotel Andaluz in Albuquerque.
The luncheon will be followed by a CLE
program featuring nationally recognized
speaker James P. Cooney III, who will
provide a comprehensive overview and
discussion of the Duke lacrosse prosecutions, entitled “Anatomy of a Hoax” (1.5 G).
A panel of retired judges will then discuss
“What Can Mediation Do For You? The
Ethical Role of the Mediator and Tips for
Obtaining Effective Settlements” (1.0 EP).
The event will conclude with a reception.
For more information and registration,
visit www.nmdla.org, or call 505-797-6021.
New Mexico Hispanic Bar
Association
CLE and Meet and Greet in
Las Cruces
The New Mexico Hispanic Bar Association will present “Civility Matters” (1.0
EP, pending MCLE approval) with U.S.
District Court Judge Carmen Gaza at 3:30
p.m., Sept. 26, at St. Clair’s Winery & Bistro, 1720 Avenida de Mesilla, Las Cruces.
The cost is $20 for NMHBA members and
6
New Mexico Legal Aid
Giving Back to Those Who Have
Served
On Sept. 24, New Mexico Legal Aid
will hold its first annual “Feat for Justice”
fundraising hike in the Grand Canyon.
Albuquerque attorney Matthew Vance will
embark on a 48-mile journey in 22 hours
or less. All proceeds from the event benefit
the Veterans Justice Project. Help New
Mexico’s veterans by making a donation
at www.togetherforjusticenm.org. Support will enable one more veteran to keep
his or her home, reclaim dignity, obtain
health care or disability benefits and escape
domestic violence. Learn more about the
hike and get live updates on Facebook,
http://www.facebook.com/feat4justice.
New Mexico Workers’
Compensation Administration
Free Disability Guidelines Training
The New Mexico Workers’ Compensation Administration adopted the Official
Disability Guidelines, effective July 1.
According to the adoption, all medical services rendered pursuant to recommended
treatment contained in the most recent
edition of ODG is presumed reasonable
and necessary. The most recent edition is
“ODG on the Web,” a subscription-based
site. The New Mexico WCA has sponsored
access to this site for New Mexico providers and attorneys practicing workers’ compensation. Complimentary ODG training
sessions will be held on Oct. 22 at 9 a.m.,
1 p.m. and 6 p.m. All sessions will be at
the WCA building, 2410 Centre Ave SE,
Albuquerque. The trainings will provide a
brief overview of how the evidence-based
medical treatment guidelines in ODG
were created, who writes the guidelines,
how to access ODG on the web and a live
demonstration. Contact Victoria Wagner
at 505-841-6844 or Victoria.Wagner@
state.nm.us to register (required).
Destruction of Mediation Exhibits
In accordance with NMAC 11.4.4.9
(P)–Forms, Filing and Hearing Procedures:
Return of Records, the New Mexico Workers’ Compensation Administration will be
destroying all mediation exhibits filed in
cases 1986–Aug. 15, 2014, in which the
recommended resolution has been issued,
excluding cases on appeal. The exhibits are
stored at 2410 Centre Ave SE, Albuquerque. They can be picked up until Sept. 30.
For more information, contact the WCA at
1-800-255-7965 and ask for Dana Chavez,
clerk of the court. Exhibits not claimed by
the specified date will be destroyed.
Settlement Week
The New Mexico Workers’ Compensation Administration will host “Settlement
Week” Oct. 27–31. In past years, the event
has been successful in streamlining the
court dockets by either resolving claims
or moving claims closer to settlement.
In-person settlement conferences will be
held at the WCA offices in Albuquerque.
Parties in remote locations may participate
by telephone or by video from WCA field
offices in Farmington, Las Cruces, Las
Vegas, Lovington, Roswell and Santa Fe.
Parties wanting to have cases included in
Settlement Week should contact Beverly
Eschberger at 505-841-6089 or Beverly.
[email protected].
Santa Fe Neighborhood
Law Center
Neighborhood Law and Policy
CLE Conference
The Annual Neighborhood Law and
Policy Conference (10.0 G, 2.0 EP), cosponsored by the City of Santa Fe, will be
held from 8 a.m.–4:30 p.m., Dec. 11–12,
at the Santa Fe Community Convention
Center. Tuition is $350, reduced to $325 for
early registrations and payment received
by Nov. 27. A free continental breakfast
and box lunch will be provided both days.
To register, visit http://sfnlc.com/.
Submit
announcements
for publication in
the Bar Bulletin to
[email protected]
g
by noon Monday
the week prior
to publication.
The Young Lawyers Division sponsored a diversity kickoff event at the UNM School of Law on Sept. 6. The event was designed to
increase collaboration among diverse bar associations and diverse law student organizations in the hopes of supporting achievement
of one another’s goals.
Thank You to
Keleher & McLeod, P.A.
for Making the September Civil Legal Clinic a Success!
The Second Judicial District Pro Bono Committee and the Volunteer
Attorney Program would like to thank Keleher & McLeod and its attorneys
and staff for volunteering their time and expertise at the Sept. 3 Civil Legal
Clinic. Keleher & McLeod is the first firm to host one of the civil legal
clinics, which are held the first Wednesday of every month at the Second
Judicial District Courthouse in the 3rd floor conference room from 10
a.m. until 1 p.m.
Mary Behm
Justin Breen
Cheryl Hill
David Peterson
W. Spencer Reid
Twenty-three individuals were assisted at the September clinic.
Remaining clinic dates: Oct. 1, Nov. 5 and Dec. 3.
If you or your firm are interested in volunteering,
please contact Paul Haidle at
[email protected] or 505-797-6077.
Check out the
redesigned eNews.
Get the latest updates
on CLE classes, member
benefits, and other
law-related activities
around New Mexico.
To subscribe to eNews
free of charge, contact
[email protected].
The Board Governing the Recording of Judicial Proceedings
A Board of the Supreme Court of New Mexico
Expired Court Monitor Certifications
The following list for publication are the certification numbers and names of those court monitors whose New Mexico
certifications expired as of July 31, 2014:
Name
Monitor No.
Bridget Apodaca
Graciela Arambula
Romy Baca
Michelle Baldonado
Theresa Blair
Amy Cabeza de Baca
Alberta Charly
Viola Chavez
Tonya Croft
83
197
302
321
133
272
303
248
318
Name
Monique Florez
Elaine Gomez Dawn Kynast
Norma Lucero
Mary Mora
Lorraine Ortiz
Michelle Pino-Mathis
Jessica Pfieffer
Lisa Pitchford
Monitor No.
337
296
59
126
247
242
262
278
103
Name
Monitor No.
Stephanie Quintana
Tamara Reichel
Patti Richardson
Sheralee Savage
Rossie Sepulveda
Francine Teran
Mickie Vega
Tammy Vigil
Melanie Whitaker
185
306
148
130
339
121
325
216
307
For more information, visit www.ccrboard.com.
New
dates!
Nov. 9-14
CUBA
At the invitation of the Union of Cuban Jurists, the State Bar of New Mexico
is organizing a delegation to visit Cuba to research the country’s legal system.
State Bar President Erika Anderson will lead the delegation. We invite you to
join in this unique opportunity.
This delegation will convene in Miami on Nov. 9, and will return to Miami on Nov. 14. Please see
www.professionalsabroad.org for itinerary details.
Our delegation will undertake a comprehensive study of the Cuban legal system, from the teaching of law, to the
criminal justice and judicial systems; civil and family code; business and commercial rights; and resolving domestic
and international commercial conflicts. CLE credit will not be available.
A parallel program of people-to-people activities will be available for spouses and guests.
For more information, Professionals Abroad, 1-877-298-9677 or www.professionalsabroad.org
8
Legal Education
September
24
Drafting Escrow Agreements in
Business and Real Estate
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
26
Positive Psychology for Lawyers—
Neuroscience and the Lawyer’s
Brain
3.0 EP
Live Seminar
505-797-6020
www.nmbarcle.org
26
10
Southeastern N.M. Regional CLE
3.0 G, 1.0 EP
Roswell
New Mexico Criminal Defense
Lawyers Association
505-992-0050
[email protected]
14
2014 Ethicspalooza: Charging a
Reasonable Fee
1.0 EP
Video Replay
505-797-6020
www.nmbarcle.org
14
The 29th Annual Bankruptcy Year
in Review Seminar
6.0 G, 1.0 EP
Video Replay
505-797-6020
www.nmbarcle.org
14
14
Criminal Issues in Immigration
Law
5.5 G
Video Replay
505-797-6020
www.nmbarcle.org
15
14
16
Keeping Current Symposium
6.0 G
Live Seminar
Society of Financial Service
Professionals-NM-West TX Chapter
505-821-7130
October
2
2014 Health Law Symposium
5.5 G
Live Seminar and Webcast
505-797-6020
www.nmbarcle.org
2
Asset Protection for Real Estate
1.0 G
505-797-6020
www.nmbarcle.org
3
2014 Employment and
Labor Law Institute
4.5 G, 1.5 EP
505-797-6020
www.nmbarcle.org
7–8
Inter-species Conversions and
Mergers, Parts 1–2
2.0 G
505-797-6020
www.nmbarcle.org
9
Police Misconduct: Understanding
§1983 Civil Rights Actions
3.0 G
505-797-6020
www.nmbarcle.org
10
Fire in the Hole: What’s Exploding
in New Mexico Mining Law
5.5 G, 1.0 EP
505-797-6020
www.nmbarcle.org
11th Annual Spring Elder Law
Institute: Current Medical
Developments Every Elder Law
Attorney Should Know
2.5 G
Video Replay
505-797-6020
www.nmbarcle.org
14
2014 Ethicspalooza: The Ethics of
Social Media Use
1.0 EP
Video Replay
505-797-6020
www.nmbarcle.org
2014 Americans with Disabilities
Act Update
1.0 G
505-797-6020
www.nmbarcle.org
Incentive Trusts in Estate Planning:
Promise and Peril
1.0 G
505-797-6020
www.nmbarcle.org
Practice Management, the Cloud,
and Your Firm
3.0 G
505-797-6020
www.nmbarcle.org
16
Establishing Your Online Presence,
Ethically and Professionally
2.0 EP
505-797-6020
www.nmbarcle.org
9
Legal Education
www.nmbar.org
October
16
Advanced Oil and Gas Energy
Resources
11.2 G, 1.5 EP
Video Replay
State Bar of Texas
512-427-1426
www.texasbarcle.com
21
2014 Ethicspalooza: Proper Trust
Accounting
1.5 EP
Video Replay
505-797-6020
www.nmbarcle.org
Attorney Ethics, Advertising and
the Internet
1.0 EP
505-797-6020
www.nmbarcle.org
17
New Mexico Administrative Law
Institute 2014
4.2 G, 2.0 EP
505-797-6020
www.nmbarcle.org
21
24–25 2014 Family Law Institute
10.0 G, 2.0 EP
505-797-6020
www.nmbarcle.org
21
Skeptically Determining the Limits
of Scientific Evidence V
5.0 G, 1.5 EP
Video Replay
505-797-6020
www.nmbarcle.org
21
21
Accounting for Lawyers
6.0 G
Video Replay
505-797-6020
www.nmbarcle.org
22–23 Great Adverse Depositions:
Principles and Principal
Techniques
6.0 G
Webinar
505-797-6020
www.nmbarcle.org
2014 Ethicspalooza: Ethically
Managing Your Practice
1.5 EP
Video Replay
505-797-6020
www.nmbarcle.org
Governance of Private and FamilyControlled Companies
1.0 G
505-797-6020
www.nmbarcle.org
24
28–29 Fiduciary and Income Tax Issues in
Estate Planning, Parts 1–2
2.0 G
505-797-6020
www.nmbarcle.org
November
4–5
Drafting Buy/Sell Agreements,
Parts 1–2
2.0 G
505-797-6020
www.nmbarcle.org
11–12 Real Estate Joint Ventures,
Parts 1–2
2.0 G
505-797-6020
www.nmbarcle.org
6
Attorney Ethics When Supervising
Other Attorneys
1.0 EP
505-797-6020
www.nmbarcle.org
13
10
Estate Planning for Pets
1.0 G
505-797-6020
www.nmbarcle.org
14
Ethics and Dishonest Clients
1.0 EP
505-797-6020
www.nmbarcle.org
10
Attorney Ethics and Dissolution
of a Law Firm
1.0 EP
505-797-6020
www.nmbarcle.org
17–18 Estate Planning for MDs, Jds, CPAs
and Other Professionals,
Parts 1–2
2.0 G
505-797-6020
www.nmbarcle.org
25
2014 Sex Harassment Update
1.0 G
505-797-6020
www.nmbarcle.org
Writs of Certiorari
As Updated by the Clerk of the New Mexico Supreme Court
Joey D. Moya, Chief Clerk New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Effective September 12, 2014
Petitions for Writ of Certiorari Filed and Pending:
No. 34,891
No. 34,888
No. 34,889
No. 34,887
No. 34,886
No. 34,885
No. 34,882
No. 34,866
No. 34,841
No. 34,836
No. 34,877
No. 34,876
No. 34,855
No. 34,826
No. 34,875
No. 34,874
No. 34,878
No. 34,871
No. 34,872
No. 34,870
No. 34,869
No. 34,864
No. 34,863
No. 34,862
No. 34,847
No. 34,861
No. 34,860
No. 34,859
No. 34,854
No. 34,796
No. 34,830
No. 34,819
No. 34,812
No. 34,801
No. 34,797
No. 34,777
No. 34,790
No. 34,765
No. 34,793
No. 34,775
No. 34,776
Date Petition Filed
Rabo v. Terra
COA 32,697 09/12/14
Gunderson v.
City of Roswell
COA 32,851 09/12/14
State v. Ramirez
COA 33,667 09/11/14
State v. Allen
COA 32,774 09/10/14
State v. Sabeerin COA 31,412/31,895 09/10/14
Savage v. State
12-501 09/08/14
Garcia v. Janecka
12-501 09/04/14
State v. Yazzie
COA 32,476 09/04/14
State v. Lope
COA 32,511 09/04/14
State v. Anderson
COA 31,727 09/02/14
State v. Castillo
COA 32,850 08/29/14
State v. Henderson
COA 33,636 08/29/14
Rayos v. State
COA 32,911 08/29/14
Response filed 9/8/14
State v. Trammel
COA 31,097 08/29/14
Derringer v. Derringer COA 32,982 08/28/14
State v. Gilmore
COA 33,752 08/27/14
O’Neill v. Bravo
12-501 08/26/14
State v. West
COA 33,296 08/26/14
State v. Romero
COA 33,585 08/25/14
McDowell v. Galbriso
COA 32,356 08/25/14
Denning v. Kalloni
COA 32,566 08/25/14
Stills v. State
12-501 08/21/14
State v. Hermosillo
COA 32,891 08/21/14
Whatley v. Williams
12-501 08/20/14
State v. Gerlinda C.
COA 33,537 08/19/14
State v. Matthews
COA 33,591 08/18/14
State v. Lopez
COA 33,488 08/18/14
Hacessa v. Janecka
12-501 08/15/14
State v. Alex S.
COA 32,836 08/13/14
Miller v. Ortiz
12-501 08/08/14
State v. Mier
COA 33,493 07/25/14
Response ordered; due 9/18/14
McGhee v, State
12-501 07/17/14
Ruiz v. Stewart
12-501 07/11/14
Beserra v. N.M. Taxation
Revenue Dept.
COA 33,641 07/07/14
Weiss v.
Board of Education
COA 32,844 07/03/14
State v. Dorais
COA 32,235 07/02/14
Venie v. Velasquz
COA 33,427 06/27/14
Helfferich v. Frawner
12-501 06/24/14
Isbert v. Nance
12-501 06/23/14
State v. Merhege
COA 32,461 06/19/14
Serna v. Franco
12-501 06/13/14
No. 34,748
No. 34,731
No. 34,728
No. 34,739
No. 34,706
No. 34,615
No. 34,691
No. 34,668
No. 34,633
No. 34,589
No. 34,574
No. 34,571
No. 34,563
No. 34,560
No. 34,289
No. 34,303
No. 34,067
No. 33,868
No. 33,819
No. 33,867
No. 33,539
No. 33,630
Smith v. State
12-501
Helfferich v. Frawner
12-501
Martinez v. Bravo
12-501
Holguin v. Franco
12-501
Camacho v. Sanchez
12-501
Dominguez v. Bravo
12-501
Wetson v. Nance
12-501
Response ordered; filed 7/14/14
State v. Vigil
COA 32,166
Vespender v. Janecka
12-501
Seager v. State
12-501
Montano v. Hatch
12-501
Fresquez v. State
12-501
Benavidez v. State
12-501
Hartzell v. State
12-501
Tafoya v. Stewart
12-501
Gutierrez v. State
12-501
Gutierrez v. Williams
12-501
Burdex v. Bravo
12-501
Chavez v. State
12-501
Roche v. Janecka
12-501
Contreras v. State
12-501
Utley v. State
12-501
06/06/14
05/29/14
05/29/14
05/21/14
05/13/14
05/12/14
05/07/14
04/29/14
04/29/14
04/23/14
04/21/14
04/07/14
02/25/14
02/11/14
08/23/13
07/30/13
03/14/13
11/28/12
10/29/12
09/28/12
07/12/12
06/07/12
Certiorari Granted but not yet Submitted to the Court:
(Parties preparing briefs) No. 33,725 State v. Pasillas
No. 33,837 State v. Trujillo
No. 33,877 State v. Alvarez
No. 33,930 State v. Rodriguez
No. 33,994 Gonzales v. Williams
No. 33,863 Murillo v. State
No. 33,810 Gonzales v. Marcantel
No. 34,311 State v. Favela
No. 34,363 Pielhau v. State Farm
No. 34,274 State v. Nolen
No. 34,398 State v. Garcia
No. 34,400 State v. Armijo
No. 34,498 Hightower v. State
No. 34,488 State v. Norberto
No. 34,487 State v. Charlie
No. 34,443 Aragon v. State
No. 34,516 State v. Sanchez
No. 34,473 Mandeville v.
Presbyterian Healthcare
Date Writ Issued
COA 31,513 09/14/12
COA 30,563 11/02/12
COA 31,987 12/06/12
COA 30,938 01/18/13
COA 32,274 08/30/13
12-501 08/30/13
12-501 08/30/13
COA 32,044 10/18/13
COA 31,899 11/15/13
12-501 11/20/13
COA 31,429 12/04/13
COA 32,139 12/20/13
12-501 02/07/14
COA 32,353 02/07/14
COA 32,504 02/07/14
12-501 02/14/14
COA 32,994 02/14/14
COA 32,999 03/07/14
11
Writs of Certiorari
No. 34,548
No. 34,558
No. 34,549
No. 34,526
No. 34,522
No. 34,582
No. 34,644
No. 34,637
No. 34,613
No. 34,607
No. 34,554
No. 34,476
No. 34,694
No. 34,669
No. 34,650
No. 34,630
No. 34,764
No. 34,789
No. 34,769
No. 34,786
No. 34,784
No. 34,805
No. 34,798
No. 34,843
No. 34,834
No. 34,772
No. 34,726
State v. Davis
COA 28,219
State v. Ho
COA 32,482
State v. Nichols
COA 30,783
State v. Paananen
COA 31,982
Hobson v. Hatch
12-501
State v. Sanchez
COA 32,862
Valenzuela v. Snyder
COA 32,680
State v. Serros
COA 31,975
Ramirez v. State
COA 31,820
Lucero v.
Northland Insurance
COA 32,426
Miller v.
Bank of America
COA 31,463
State v. Pfauntsch
COA 31,674
State v. Salazar
COA 33,232
Hart v. Otero County Prison 12-501
Scott v. Morales
COA 32,475
State v. Ochoa
COA 31,243
State v. Slade
COA 32,681
Tran v. Bennett
COA 32,677
State v. Baca
COA 32,553
State v. Baca
COA 32,523
Silva v. Lovelace Health
Systems, Inc.
COA 31,723
King v.
Behavioral Home Care COA 31,682
State v. Maestas
COA 31,666
State v. Lovato
COA 32,361
SF Pacific Trust v.
City of Albuquerque
COA 30,930
City of Eunice v. N.M. Taxation
and Revenue Dept.
COA 32,955
Deutsche Bank v. Johnson COA 31,503
03/14/14
03/21/14
03/28/14
03/28/14
03/28/14
04/11/14
05/01/14
05/01/14
05/01/14
05/01/14
05/01/14
05/01/14
06/06/14
06/06/14
06/06/14
06/06/14
08/01/14
08/01/14
08/01/14
08/01/14
08/01/14
08/15/14
08/15/14
08/29/14
08/29/14
08/29/14
08/29/14
Certiorari Granted and Submitted to the Court:
(Submission Date = date of oral
argument or briefs-only submission)
Submission Date
No. 33,632 First Baptist Church of Roswell v.
Yates Petroleum
COA 30,359 03/13/13
No. 33,548 State v. Marquez
COA 30,565 04/15/13
No. 33,971 State v. Newman
COA 31,333 07/24/13
No. 33,808 State v. Nanco
COA 30,788 08/14/13
No. 33,862 State v. Gerardo P.
COA 31,250 08/14/13
No. 33,770 Vaughn v.
St. Vincent Hospital
COA 30,395 08/26/13
12
No. 33,969
Safeway, Inc. v.
Rooter 2000 Plumbing
COA 30,196
No. 33,898 Bargman v. Skilled Healthcare
Group, Inc.
COA 31,088
No. 33,884 Acosta v. Shell Western Exploration
and Production, Inc.
COA 29,502
No. 34,013 Foy v. Austin Capital
COA 31,421
No. 34,085 Badilla v. Walmart
COA 31,162
No. 34,146 Madrid v.
Brinker Restaurant
COA 31,244
No. 34,128 Benavides v.
Eastern N.M. Medical
COA 32,450
No. 34,093 Cordova v. Cline
COA 30,546
No. 34,194/34,204
King v. Faber
COA 34,116/31,446
No. 33,999 State v. Antonio T.
COA 30,827
No. 33,997 State v. Antonio T.
COA 30,827
No. 34,287 Hamaatsa v.
Pueblo of San Felipe
COA 31,297
No. 34,120 State v. Baca
COA 31,442
No. 34,583 State v. Djamila B.
COA 32,333
No. 34,122 State v. Steven B. consol. w/
State v. Begaye
COA 31,265/32,136
No. 34,286 Yedidag v.
Roswell Clinic Corp.
COA 31,653
No. 34,499 Perez v. N.M. Workforce
Solutions Dept. COA 32,321/32,330
No. 34,546 N.M. Dept. Workforce Solutions v.
Garduno
COA 32,026
No. 34,271 State v. Silvas
COA 30,917
No. 34,365 Potter v. Pierce
COA 31,595
No. 34,435 State v. Strauch
COA 32,425
No. 34,447 Loya v. Gutierrez
COA 32,405
No. 34,295 Dominguez v. State
12-501
No. 34,300 Behrens v. Gateway
COA 31,439
No. 34,501 Snow v. Warren Power
COA 32,335
No. 34,455 City of Santa Fe v.
Tomada
COA 32,407
08/28/13
09/11/13
10/28/13
11/14/13
12/04/13
12/09/13
12/18/13
01/15/14
02/24/14
02/26/14
02/26/14
03/26/14
03/26/14
07/29/14
08/11/14
08/11/14
08/13/14
08/13/14
08/25/14
08/25/14
08/27/14
08/27/14
09/24/14
09/29/14
10/01/14
10/14/14
Petition for Writ of Certiorari Denied:
No. 34,853
No. 34,851
No. 34,848
No. 34,807
No. 34,604
Date Order Filed
State v. Quintana
COA 33,306 09/11/14
State v. McClintock
COA 31,425 09/11/14
Polk v. Aubrey
COA 32,297/32,427 09/11/14
Hernandez v. Ortiz
12-501 09/10/14
Lopez v. State
12-501 09/10/14
Opinions
As Updated by the Clerk of the New Mexico Court of Appeals
Wendy F. Jones, Chief Clerk New Mexico Court of Appeals
PO Box 2008 • Santa Fe, NM 87504-2008 • (505) 827-4925
Published Opinions
No. 32774 11th Jud Dist San Juan CR-12-503, STATE v C ALLEN (affirm)
9/8/2014
No. 31890 2nd Jud Dist Bernalillo LR-11-18, STATE v R BELL (reverse)
9/9/2014
No. 32542 1st Jud Dist Santa Fe CV-05-1424, J FREEMAN v P FAIRCHILD (affirm in part, reverse in part)
9/10/2014
Unublished Opinions
No. 33642 2nd Jud Dist Bernalillo JQ-11-114, CYFD v JACQUELINE M (affirm)
9/8/2014
No. 33720 2nd Jud Dist Bernalillo JQ-12-85, CYFD v MONICA G (affirm)
9/8/2014
No. 33768 11th Jud Dist McKinley LR-12-25, STATE v B NEZ (affirm)
9/8/2014
No. 32731 1st Jud Dist Santa Fe CV-10-1766, MABRY CONSTRUCTION v LAS CAMPANAS (reverse and remand) 9/8/2014
No. 33477 5th Jud Dist Eddy LR-13-8, CITY OF ARTESIA v R THOMAS (affirm)
9/9/2014
No. 33530 2nd Jud Dist Bernalillo LR-11-58, STATE v M MARTINEZ (affirm)
9/9/2014
No. 33567 5th Jud Dist Lea CR-13-317, STATE v M HARDY (reverse and remand)
9/9/2014
No. 33600 5th Jud Dist Chaves CR-12-35, STATE v D PORRAS (affirm)
9/9/2014
No. 31741 5th Jud Dist Eddy CR-11-16, STATE v L LUEVANO (affirm)
9/9/2014
No. 33703 13th Jud Dist Cibola CV-12-124, F DOMBOS v R STEWART (affirm in part, reverse in part)
9/11/2014
Slip Opinions for Published Opinions may be read on the Court’s website:
http://coa.nmcourts.gov/documents/index.htm
13
Clerk’s Certificates
From the Clerk of the New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Dated August 25, 2014
Clerk’s Certificate
of Address and/or
Telephone Changes
Jennifer Sheridan Baker
Fredericks Peebles
& Morgan LLP
1900 Plaza Drive
Louisville, CO 80027
303-673-9600
303-673-9155 (fax)
[email protected]
Mark S. Barron
Baker & Hostetler LLP
1801 California Street,
Suite 4400
Denver, CO 80202
303-764-4023
303-861-7805 (fax)
[email protected]
Robert Myles Baskerville
PO Box 4130
112 Edith Blvd. NE (87102)
Albuquerque, NM 87196-4130
505-967-8698
505-268-3939 (fax)
[email protected]
Miles Leachman Buckingham
Nemirow Perez PC
445 Union Blvd., Suite 209
Lakewood, CO 80228
720-638-1234
mbuckingham@
nemirowperez.com
Marisela Inez Chavez
Archibeque Law Firm, LLC
PO Box 94837
6709 Academy Road NE,
Suite B (87109)
505-750-2363
505-792-6084 (fax)
marisela@archibequelawfirm.
com
Taina L. Colon
Law Office of Taina L. Colon
PO Box 35985
505-850-9812
[email protected]
14
Kendrick Winsor Dane
The Dane Law Firm, PC
1803 Rio Grande Blvd. NW
Albuquerque, NM 87104
505-501-7558
505-501-7556 (fax)
[email protected]
Steven J. Lucero
McCarthy Holthus LLP
6501 Eagle Rock Ave. NE,
Suite A-3
877-369-6122 Ext. 2506
[email protected]
Amber Fayerberg
Freedman Boyd Hollander
Goldberg Urias & Ward PA
20 First Plaza NW, Suite 700
505-842-9960
505-842-0761 (fax)
[email protected]
Lindsay Ann
McDonell-Benatar
Law Offices of the
Public Defender
506 S. Main Street, Suite 700
Las Cruces, NM 88001
575-541-3193
575-524-6765 (fax)
lindsay.mcdonell-ben@
lopdnm.us
Darin Foster
400 Goodnight Trail
Justin, TX 76247
505-850-5595
[email protected]
Hon. Nancy Jean Franchini
Second Judicial District Court
PO Box 488
400 Lomas Blvd. NW (87102)
505-841-7522
505-841-5456 (fax)
Desiree D. Gurule
Brown Law Firm, Brown
& Gurule, LLC
3777 The American Rd. NW,
Suite 100
505-292-9677
505-292-9680 (fax)
[email protected]
Paul John Kennedy
(pkennedy@paulkennedylaw.
com)
Nanette E. Erdman
(nerdman@paulkennedylaw.
com)
Justine C. Fox-Young
(jfoxyoung@paulkennedylaw.
com)
Arne Robert Leonard
(aleonard@paulkennedylaw.
com)
Paul Kennedy
& Associates, PC
201 Twelfth Street NW
505-842-8662
505-842-0653 (fax)
Anne Elizabeth Illanes
Meyers
Riley, Shane & Keller, PA
3880 Osuna Road NE
505-883-5030
[email protected]
Scott L. Mullins
Oregon Division of Finance
and Corporate Securities
DFCS 350 Winter Street NE
Salem, OR 97301-3881
503-947-7017
Amy L. Orlando
N.M. Department of
Public Safety
PO Box 1628
4491 Cerrillos Road (87507)
Santa Fe, NM 87504-1628
505-827-9036
505-827-3387 (fax)
[email protected]
Alexander K. Russell
PO Box 961215
Boston, MA 02196-1215
Allison Ann Sipes
2327 McNutt Road, Suite B
Sunland Park, NM 88063
575-589-9393
[email protected]
Scott Sweeney
Wilson Elser Moskowitz
Edelman & Dicker LLP
1225 Seventeenth Street,
Suite 2750
Denver, CO 80202
303-572-5300
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17
Advance Opinions
http://www.nmcompcomm.us/
From the New Mexico Supreme Court and Court of Appeals
Opinion Number: 2014-NMSC-027
AGALELEI KIMBRELL, also known as LILY KIMBRELL,
by and through her next friend and parent W. DAVID KIMBRELL,
Plaintiff-Respondent,
v.
LORRAINE KIMBRELL and KATHRIN KINZER-ELLINGTON,
Defendants-Petitioners
No. 34,150 (filed June 23, 2014)
ORIGINAL PROCEEDING ON CERTIORARI
BARBARA J. VIGIL and SARAH M. SINGLETON, District Judges
COURTENAY LEE KELLER
TIFFANY L. SANCHEZ
RILEY, SHANE & KELLER, P.A.
Albuquerque, New Mexico
for Petitioner
Kathrin Kinzer-Ellington
MICHAEL H. SCHWARZ
Santa Fe, New Mexico
for Petitioner Lorraine Kimbrell
GARY W. BOYLE
for Respondent
JAMES E. BRISTOL, III
BRISTOL FAMILY LAW, L.L.C.
Opinion
Edward L. Chávez, Justice
{1} Petitioner Kathrin M. Kinzer-Ellington (Kinzer-Ellington) was appointed
guardian ad litem pursuant to Rule
1-053.3 NMRA to serve as an arm of the
court in determining the best interests
of minor children whose parents were
involved in a custody dispute. Kimbrell v.
Kimbrell, 2013-NMCA-070, ¶ 2, 306 P.3d
495, cert. granted, 2013-NMCERT-006.
As the case grew more and more contentious, W. David Kimbrell (Father) sued
both Lorraine Kimbrell (Mother) and the
guardian ad litem in tort as next friend of
his oldest daughter, Lily Kimbrell (Lily),
18
TIFFANY OLIVER LEIGH
LITTLE, GILMAN-TEPPER, BATLEY
& LEIGH, P.A.
LINDA HELEN BENNETT
L. HELEN BENNETT, P.C.
for Amicus Curiae the
Family Law Section of the
State Bar of New Mexico
PETER HENRY KLAGES
F. MICHAEL HART
MARTINEZ, HART & THOMPSON, P.C.
for Amicus Curiae Pegasus Legal
Services for Children
alleging that their conduct had injured
the child. Id. ¶ 3. We granted certiorari to
determine whether a parent has standing
to sue a Rule 1-053.3 guardian ad litem
during a pending custody proceeding.
Intertwined with this question is whether
a Rule 1-053.3 guardian ad litem is absolutely immune from suit arising from the
performance of his or her duty—a question we answer first.
{2} We hold that a Rule 1-053.3 guardian
ad litem is protected by absolute quasijudicial immunity from suit arising from
the performance of his or her duties unless
the guardian ad litem’s alleged tortious
conduct is clearly and completely outside
the scope of his or her appointment. The
custody court that appointed the guard-
ian ad litem is the appropriate court to
determine whether the guardian ad litem’s
alleged misconduct arose from acts clearly
and completely outside the scope of the
appointment and, if so, the custody court
should appoint a guardian ad litem, other
than a parent, pursuant to Rule 1-017(C)
NMRA to represent the child in any
necessary litigation. A parent does not
have standing to sue a guardian ad litem
appointed in a custody proceeding on
behalf of the child because (1) the parent
has been found to be unable to act in the
best interests of the child, and (2) such a
lawsuit would create a conflict of interest
in the custody case.
BACKGROUND
{3} The long and contentious history of this
domestic relations case is well documented
in the Court of Appeals’ opinion. Kimbrell,
2013-NMCA-070, ¶¶ 2-8. We do not need
to repeat all of the details of the disputatious
history because the degree of contentiousness is not relevant to the issues before us.
Only the details of the appointment of the
guardian ad litem and of the lawsuit against
the guardian ad litem are relevant.
{4}Kinzer-Ellington was appointed
guardian ad litem pursuant to NMSA
1978, Section 40-4-8 (1993) to assist the
parties and the district court in determining the best interests of the Kimbrells’
four minor children. Soon after KinzerEllington issued her first report and recommendations, the district court entered
a stipulated order regarding child custody
and periods of responsibility that adopted
most of Kinzer-Ellington’s recommendations and discharged her from further
service. However, Kinzer-Ellington was
reappointed pursuant to Rule 1-053.3 after
problems continued between Father and
Mother. The district court specified her
role and made clear that she served as an
arm of the court pursuant to Rule 1-053.3.
{5}Following Kinzer-Ellington’s reappointment, Father refused to permit her to
speak with Lily; insisted on being present
during meetings between Kinzer-Ellington
and the children or to have those meetings recorded; refused to execute authorizations for the release of information
regarding the children; filed five different
motions to have Kinzer-Ellington removed
as guardian ad litem, all of which were
denied; filed two disciplinary complaints
against Kinzer-Ellington, both of which
were dismissed for lack of merit; sued
Kinzer-Ellington and others in federal
Advance Opinions
court; and also sued Kinzer-Ellington and
Mother in state court, alleging tortious
conduct. After one of Father’s motions to
remove Kinzer-Ellington as the guardian
ad litem, the district court, apparently exasperated, entered the following findings
in denying the motion:
3. David Kimbrell’s January 8,
2010 Motion to Replace Guardian ad Litem continues to try
to attack the guardian ad litem’s
ability to provide independent
representation of the parties’
children.
. . .
5.The guardian ad litem has
maintained an objective view of
this case and remains objective in
exercising her role in this case.
6. David Kimbrell inappropriately views the guardian ad litem
as an opponent in this matter.
7. David Kimbrell’s continuing
attacks on the guardian ad litem
are becoming problematic to the
administration of justice.
8. David Kimbrell’s continuing
attacks on the guardian ad litem
have become unfair and abusive.
{6}The issue before us arises from the
state court tort litigation. In that case,
Father sued Mother as next friend and
parent of Lily, and later amended his
complaint to include Kinzer-Ellington as
a co-defendant. Father alleged that KinzerEllington breached her fiduciary duty to
Lily; invaded Lily’s privacy; committed
prima facie tort; and caused intentional
infliction of emotional distress by, among
other things, blocking contact between
Lily and her siblings.
{7}Both Kinzer-Ellington and Mother
filed motions to dismiss the tort action.
The district court took judicial notice of
the voluminous family court file and the
fact that Kinzer-Ellington was appointed
guardian ad litem under Rule 1-053.3 “due
to the inability of either parent to remain
objective and agree on what is in the best
interests of the child.” The district court
also found that Father “does not possess
the necessary objectivity to make decisions
concerning the best interests of the child
including whether a tort suit should be
brought on behalf of the child against the
child’s mother and/or the guardian ad litem.” The district court concluded that the
best interests of the child and the appointment of the guardian ad litem pursuant to
Section 40-4-8 and Rule 1-053.3 “deprive
the child’s parents of standing to bring
a tort suit on behalf of the child against
the other parent and/or the guardian ad
litem.” The district court noted that the
remedy for improper conduct on the part
of the guardian ad litem is removal in the
underlying domestic relations proceeding.
The district court dismissed Father’s tort
case with prejudice.
{8}On appeal, the Court of Appeals
reversed the district court, holding that
“[u]nder our law as it exists today, parents
retain standing to sue their child’s guardian on behalf of their child, subject to the
guardian’s limited immunity as an arm of
the court. We thus conclude that Father has
standing to assert the tort cause of action
in this case.” Kimbrell, 2013-NMCA-070,
¶ 19. With respect to immunity, the Court
of Appeals acknowledged that a guardian
ad litem who acts as an arm of the court
enjoys absolute immunity for conduct
within the scope of the appointment. Id.
¶ 21. However, pursuant to Collins ex rel.
Collins v. Tabet, 1991-NMSC-013, ¶ 10,
111 N.M. 391, 806 P.2d 40, the Court of
Appeals employed a functional approach
to each of Father’s contentions to determine whether Kinzer-Ellington allegedly
exceeded the scope of her appointment,
and held that with one exception—alleged interference with communications
between siblings—the alleged conduct
fell within the scope of Kinzer-Ellington’s
appointment, entitling her to immunity.
Kimbrell, 2013-NMCA-070, ¶¶ 21, 31.
This Court granted Kinzer-Ellington’s
petition for writ of certiorari.1 We now
reverse the Court of Appeals and affirm
the district court’s summary judgment in
favor of Kinzer-Ellington. We first discuss
the issue of immunity and then the issue
of standing.
STANDARD OF REVIEW
{9}The Court of Appeals reviewed the
district court’s order as an order granting
summary judgment. Id. ¶ 10. The Court
of Appeals determined that KinzerEllington’s motion to dismiss Father’s tort
lawsuit for lack of standing was converted
into a motion for summary judgment
because the district court took judicial
notice of matters in the underlying divorce
and custody proceedings and considered
pleadings from those proceedings attached
to Kinzer-Ellington’s motion to dismiss. Id.
¶ 9. Orders granting summary judgment
are reviewed de novo. Romero v. Philip
Morris Inc., 2010-NMSC-035, ¶ 7, 148
N.M. 713, 242 P.3d 280. Whether a party
has standing to sue is a question of law,
which is also reviewed de novo. See San
Juan Agric. Water Users Ass’n v. KNMETV, 2011-NMSC-011, ¶ 8, 150 N.M. 64,
257 P.3d 884.
DISCUSSION
{10} In 2006, this Court adopted a rule
to define the duties of a guardian ad litem
to serve in custody disputes. Rule 1-053.3
(adopted 2006, amended 2007). A Rule
1-053.3 guardian ad litem is a “ ‘best interests attorney’ ” who provides independent
services without being bound by the child’s
or another party’s directives or objectives
and who must make findings and recommendations to the court regarding the best
interests of the child. Rule 1-053.3(C).
A Rule 1-053.3 guardian ad litem has
absolute quasi-judicial immunity from
suit arising from the performance of
his or her duties
{11}In Collins, we held that a guardian
ad litem acting as an arm of the “court is
absolutely immune from liability for his or
her actions taken [within the scope of] the
appointment.” 1991-NMSC-013, ¶ 14. The
rationale for granting absolute immunity
is to prevent the guardian ad litem’s work
from being compromised by the threat of
liability, which in turn could impair the
judge’s own performance. Id. ¶ 26.
{12}In Collins, one example we gave of
a guardian ad litem entitled to absolute
immunity was a guardian ad litem whose
responsibility was to conduct a factual
investigation and make recommendations
to the court regarding the placement of a
child consistent with the best interests of
the child. Id. ¶ 22 (citing Ward v. San Diego
Cnty. Dep’t of Soc. Servs., 691 F. Supp. 238,
240 (S.D. Cal. 1988)). In Ward, the guardian ad litem was given access to all of the
child’s records, and was notified of and
authorized to attend all conferences and
hearings regarding the child in order to
1 Lily reached the age of majority before we granted certiorari. Lily argued that the issue regarding her parents’ standing to sue
on her behalf is now moot. Regardless, we believe that the issues in this case are capable of repetition and are matters of substantial
public interest. We therefore proceed to decide the merits of this case. See Gunaji v. Macias, 2001-NMSC-028, ¶ 10, 130 N.M. 734,
31 P.3d 1008 (holding that “this Court may review moot cases that present issues of substantial public interest or which are capable
of repetition yet evade review”).
19
Advance Opinions
carry out her responsibilities. 691 F. Supp.
at 240. When the father sued the guardian
ad litem, alleging that she acted outside the
scope of her appointment, the Ward court
granted summary judgment to the guardian ad litem, holding that she had absolute
quasi-judicial immunity from liability. Id.
at 241. The rationale of the Ward court
was three-fold. See id. at 240-41. First, the
guardian ad litem was acting as an arm of
the court. Id. at 240. Second, the threat of
civil liability could impair the guardian ad
litem’s ability to independently investigate
and report the facts to the court, thereby
obstructing the pathway to ascertaining
the truth and impairing the judge’s ability to perform his or her judicial duties.
Id. Third, procedural safeguards—the
guardian ad litem serves at the discretion
of the court, the court is not bound by the
guardian’s recommendations, and the parents may appeal—are available to protect
against misconduct, making the threat of
civil litigation unnecessary. Id. at 240-41.
The guardian ad litem in Ward would
not have enjoyed absolute quasi-judicial
immunity had her actions been clearly
and completely outside the scope of her
appointment. Id. at 240 n.1.
{13} We find the analysis in Ward persuasive with respect to guardians ad litem who
are appointed pursuant to Section 40-4-8
and Rule 1-053.3. Like the guardian ad
litem in Ward, a Rule 1-053.3 guardian ad
litem “serves as an arm of the court and
assists the court in discharging its duty to
adjudicate the child’s best interests,” Rule
1-053.3(A), and “shall provide independent services to protect the child’s best interests without being bound by the child’s
or either party’s directive or objectives and
who shall make findings and recommendations.” Rule 1-053.3(C). The guardian
ad litem is authorized to interview the
parents, the children outside the presence
of the parents, the child’s therapists, and
other witnesses at the guardian ad litem’s
discretion, and is also given access to relevant records. Rule 1-053.3(F)(1).
{14} The function of Rule 1-053.3 guardians ad litem is without question to act as
an arm of the court, and they are therefore
entitled to absolute quasi-judicial immunity from liability for the performance of
their duties. In addition to concerns about
intimidation tactics or the fear of being
sued by a disgruntled parent, there are
procedural safeguards available in New
Mexico that make the threat of litigation
an unnecessary check on the conduct of a
Rule 1-053.3 guardian ad litem, such as the
20
guardian ad litem’s service at the discretion
of the court, Rule 1-053.3(A) (a court may
appoint a guardian ad litem); the court’s
ability to limit the role of the guardian ad
litem, Rule 1-053.3(B); and the parties’ ability to object to the recommendations of the
guardian ad litem, Rule 1-053.3(G)(2).
{15} In addition, like the Ward court,
we conclude that absolute quasi-judicial
immunity does not protect a Rule 1-053.3
guardian ad litem who acts clearly and
completely outside the scope of his or her
appointment. What actions may constitute
a clear and complete departure from the
scope of appointment are too difficult to
predict. An obvious example discussed
during oral argument arises when the
guardian ad litem negligently operates a
motor vehicle, legally causing injury to
a child. However, where the conduct in
question is related to communications
between the guardian ad litem and the
children, parents, therapists, other witnesses, or the gathering of information for
the purpose of making recommendations
to the court, then the conduct is not clearly
and completely outside the scope of the
appointment and the guardian ad litem is
protected by absolute immunity.
{16} The Court of Appeals employed
the functional analysis announced by the
Collins court to determine whether each
alleged act of misconduct by KinzerEllington was done within the scope of her
appointment. See Kimbrell, 2013-NMCA070, ¶¶ 21, 28. In a functional analysis,
“a limited factual inquiry is necessary to
determine the nature of [the guardian
ad litem’s] appointment and the extent to
which he [or she] functioned within the
scope of that appointment.” Collins, 1991NMSC-013, ¶ 42.
{17}The Collins court applied a functional analysis because it was not clear
from the record whether the guardian ad
litem was appointed as an arm of the court
or as a conflict lawyer/guardian ad litem to
evaluate a settlement involving a minor. Id.
¶¶ 27, 29, 44. When a guardian ad litem is
appointed pursuant to Rule 1-053.3, it is
very clear that the guardian ad litem is an
arm of the court. The appointing court is
in the best position to determine whether
the guardian ad litem has clearly and
completely acted outside the scope of his
or her appointment. Therefore, a parent
concerned about potential misconduct
by the guardian ad litem must bring the
matter to the attention of the appointing
court, which is also the custody court. The
appointing court shall exercise discretion
in conducting whatever hearing it deems
necessary to decide whether sufficient
evidence exists to support a good faith allegation that the guardian ad litem exceeded
the scope of his or her appointment. If such
evidence does exist, the court may take
whatever action it deems necessary regarding the guardian ad litem by, for example,
limiting his or her duties or removing him
or her from service. In addition, if the
court finds evidence sufficient to support a
good faith basis that the guardian ad litem
clearly and completely acted outside the
scope of his or her appointment and may
have caused injury to a child, the court
shall appoint a different guardian ad litem
to act as an attorney for the child pursuant
to Rule 1-017(C) to pursue whatever action he or she deems necessary. Although
this approach deviates from the approach
taken by the Collins court, the approach
we announce today is consistent with
the best interests of children involved in
custody disputes and with the procedures
and confidentiality requirements of Rule
1-053.3.
A parent in a custody dispute does not
have standing to sue, on behalf of a
child, a Rule 1-053.3 guardian ad litem
who does not have absolute immunity
{18} Our resolution of the immunity
question leaves the potential for a Rule
1-053.3 guardian ad litem to be sued. The
question that remains is whether a parent
in a pending custody case may sue the
guardian ad litem on behalf of a child. We
hold that a parent does not have standing
to bring such a lawsuit because the custody
court has already determined that the
parent is incapable of acting in the best
interests of the child. In addition, to allow
the parent to sue the guardian ad litem creates a conflict of interest and the potential
for interference with the administration
of justice in both the custody proceeding
and the tort action. Even in the obvious
example where a guardian ad litem negligently operates a motor vehicle causing
injury to the child, a parent who is allowed
to sue on behalf of the child may not act
in the best interest of the child regarding
settlements or other important strategies
just to spite or intimidate the guardian
ad litem. For this reason, we have already
indicated that in an appropriate case, the
custody court should appoint a guardian
ad litem for the child under Rule 1-017 to
pursue any necessary litigation.
{19} Our holding is consistent with how
other jurisdictions have approached the
issue. See Bluntt v. O’Connor, 291 A.D.2d
Advance Opinions
106, 113, 114 (N.Y. App. Div. 2002) (holding that a mother lacked standing to bring
a claim either on behalf of a child or individually against the guardian ad litem because such a suit would interfere with the
guardian ad litem appointment and create
a conflict of interest); State ex rel. Bird v.
Weinstock, 864 S.W.2d 376, 380 (Mo. Ct.
App. 1993) (holding that appointment
of a guardian ad litem in a custody case
supersedes a parent’s natural guardianship
in areas of a custody disputes as long as the
appointment lasts). The Bird court set forth
a detailed analysis of the standing issue:
the underlying suit is an independent tort action brought by
Father on behalf of the children
seeking to obtain injunctive relief
and money damages. Nevertheless, the factual allegations of
the petition and the nature of
the relief sought would appear
to fall squarely within the areas
of interest in the Juvenile Court
proceeding in which Guardian
was appointed. . . . Further, although Father does not expressly
seek Mr. Bird’s removal as guardian ad litem as part of the relief
requested in the underlying suit,
the mere assertion of a claim for
money damages against him by
his clients could very well accomplish the same result by posing
an inherent conflict of interest.
Removal of a guardian ad litem,
however, is a matter vested in the
sound discretion of the appointing court, in this case the Juvenile
Court for the City of St. Louis. . . .
Would suits and countersuits
brought in the name of the children become the new weapon of
choice in the arsenal of estranged
couples? Thus, at least with respect
to the claims asserted against
Mother and Guardian, there is
substantial reason to question
Father’s standing to maintain the
underlying suit.
Bird, 864 S.W.2d at 380-81 (emphasis
added) (footnote omitted) (internal citations omitted). The procedure we have
outlined safeguards the best interests of
the child, while preserving and protecting the important role of a Rule 1-053.3
guardian ad litem.
The guardian ad litem in this case is
absolutely immune from suit for the
alleged tortious conduct because her
conduct was not clearly and completely
outside the scope of her appointment
{20} The Court of Appeals “reverse[d] the
district court’s summary judgment solely
with regard to claims involving the [guardian ad litem]’s alleged involvement with
Mother in blocking [Lily]’s phone calls
to her siblings.” Kimbrell, 2013-NMCA070, ¶ 31. We have already held that the
custody court is the appropriate court to
determine whether the guardian ad litem’s
alleged misconduct arose from acts clearly
appointment.
{21} However, because of the protracted
nature of this litigation and what we
consider to be the adequacy of the record
before us, we conclude that even if KinzerEllington, together with Mother, blocked
calls between siblings, such actions are not
clearly and completely outside the scope of
her appointment. Guardians ad litem have
the responsibility to interview a number
of different participants in custody battles
with the goal of ascertaining the truth. In
this case, Kinzer-Ellington was ordered to
interview the children outside the presence of the parents and the attorneys. In
such a contentious case, particularly given
Father’s efforts to have the children make
false reports of abuse against Mother,
Kinzer-Ellington had the discretion to
control the communications between the
children until she completed her investigation. As a result, Kinzer-Ellington is
also absolutely immune from being sued
for the alleged collusion with Mother in
controlling the communications between
siblings in this case.
CONCLUSION
{22} The guardian ad litem cannot be
sued for the alleged misconduct because
her actions cannot be said to be clearly
appointment. Therefore, absolute quasijudicial immunity applies to the guardian
ad litem in this case. The Court of Appeals
is reversed and the district court’s summary judgment in favor of Kinzer-Ellington
is affirmed.
{23} IT IS SO ORDERED.
EDWARD L. CHÁVEZ, Justice
WE CONCUR:
PETRA JIMENEZ MAES, Justice
RICHARD C. BOSSON, Justice
CHARLES W. DANIELS, Justice
CAMILLE MARTINEZ OLGUIN, Judge
Sitting by designation
21
Advance Opinions
Certiorari Denied, June 25, 2014, No. 34,761
Opinion Number: 2014-NMCA-078
BUKE, LLC,
Plaintiff-Appellant,
v.
CROSS COUNTRY AUTO SALES, LLC,
CROSS COUNTRY AUTO SALES WESTSIDE,
LLC, SOUTHWEST AUTO WHOLESALE,
LLC, CAS, LLC, JOHN CHIADO, JOE CHIADO,
JOHN T. REILLY, BEDO, LLC, JOHN PERNER, and PERNER AND MICHNOVICZ, LLC,
Defendants-Appellees
Docket No. 32,559 (filed April 23, 2014)
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
TED BACA, District Judge
JOHN J. KELLY
MICHELLE A. HERNANDEZ
KEVIN D. PIERCE
MODRALL, SPERLING, ROEHL,
HARRIS & SISK, P.A.
for Appellant
JANE B. YOHALEM
LAW OFFICE OF JANE B. YOHALEM
Opinion
Linda M. Vanzi, Judge
{1} This lawsuit arises from a dispute
concerning the use of certain assets of
Plaintiff-Appellant BUKE, LLC (BUKE),
a limited liability company (LLC) car dealership, by BUKE’s manager, Randall Eastburg, who was also a member of BUKE
and of Defendant LLC car dealerships.
Rounding out the named Defendants are
other members of Defendant LLC car
dealerships, along with a certified public
accountant (CPA) and his accounting
firm.
CHRIS KEY
LAW OFFICE OF CHRIS KEY
for Appellees Cross Country Auto
Sales, LLC; Cross Country Auto Sales
Westside, LLC; Southwest Auto
Wholesale, LLC; CAS, LLC; John
Chiado; John T. Reilly, and BEDO, LLC
JOHN M. BRANT
JEANNIE HUNT
LAW OFFICE OF JACK BRANT, P.C.
for Appellees John Perner and
Perner and Michnovicz, LLC
{2}The case involves many players,
claims, and contentions, but resolution of
the central issues raised in this appeal turns
primarily on one disputed point—whether
Eastburg had the requisite consent to
use the assets in question. We conclude
that the only reasonable conclusion to be
drawn from the undisputed material facts
is that he did, so we affirm the district
court’s summary judgment rulings in favor of Defendant LLC car dealerships and
their members. We also affirm the district
court’s entry of summary judgment dismissing the accountant malpractice claim
and its denial of BUKE’s motion to amend
the scheduling order.
I.BACKGROUND
A. The Parties
{3}BUKE was formed in 2005 with
the following members: Brian Urlacher
(32.5%), Turner and Margaret Branch
(20%), Bryce Karger (15%), and Randall
and Lisa Eastburg (32.5%).1
{4}Defendants fall into three groups:
(1) Albuquerque used car dealerships
Cross Country Auto Sales Eastside, LLC
and Cross Country Auto Sales Westside,
LLC, along with Albuquerque wholesale
dealership Southwest Auto Wholesale,
LLC (collectively, Cross Country LLCs);
(2) Cross Country LLCs’ members: John
T. Reilly and BEDO, LLC (BEDO), which
consists of six members of the Chiado
family, two of whom are also named
Defendants (collectively, Cross Country
Members)2; (3) John Perner, a CPA who
provided services to BUKE and the Cross
Country LLCs, and his accounting firm,
Perner and Michnovicz (collectively, the
Accountants).
B. The Undisputed Material Facts
1.Eastburg’s Relationships With the
Parties
{5}Eastburg was an experienced owner
and operator of car dealerships, who operated the Cross Country LLCs since 1998.
Eastburg continued to be a member of the
Cross Country LLCs and to operate those
dealerships after he became involved with
BUKE in 2005. All of BUKE’s members
were aware of Eastburg’s involvement with
the Cross Country LLCs.
{6} Eastburg was also a member and manager of a used car dealership in Lovington,
New Mexico called “Brian Urlacher Cross
Country Auto Sales LLC” (Lovington
Dealership), in which Urlacher and Karger
had an ownership interest. Turner Branch
was the only BUKE member who did not
hold a membership interest in the Lovington Dealership.
2.Eastburg’s Management and Use of
Certain BUKE Assets
{7} BUKE selected Eastburg to be its sole
manager at its inception in 2005, and
Eastburg held that position until 2009. As
discussed further below, BUKE’s operating agreement (Operating Agreement)
prohibited BUKE’s members from participating in “the control, management,
direction or operation” of BUKE’s affairs
and gave BUKE’s manager (Eastburg)
“the exclusive right to manage all of ”
1 The parties do not mention Margaret Branch and Lisa Eastburg, other than to initially note the fact of their membership in
BUKE. Accordingly, “Branch” refers to Turner Branch and “Eastburg” to Randall Eastburg.
2 Eastburg was also a member of the Cross Country LLCs. As discussed below, BUKE dismissed its claims against Eastburg.
22
Advance Opinions
BUKE’s affairs, subject to certain limitations.
{8} In 2006, BUKE bought the assets of a
General Motors (GM) new car dealership
in Tucumcari, New Mexico (Tucumcari
Dealership) and named it “Brian Urlacher
Cross Country Autoplex.” As a GM franchisee (via the Tucumcari Dealership),
BUKE had access to GM “credentials,” also
known as a “badge,” which allowed BUKE
to purchase low-mileage GM vehicles at
closed GM auctions (GM Badge). BUKE
also had a General Motors Acceptance
Corporation (GMAC) credit line (also
known as a “floor plan”), which allowed
BUKE to finance the vehicles it purchased
at low interest rates (Credit Line).
{9}Eastburg testified that access to the
GM Badge and Credit Line was one of the
reasons he wanted to become involved with
the Tucumcari Dealership. The Tucumcari
Dealership’s former owner was aware that
Eastburg was going to use the GM Badge
during the management contract period.
Eastburg told Karger that he was going to
use the GM Badge to purchase vehicles
for the Cross Country LLCs, although he
does not recall discussing use of the GM
Badge or Credit Line for this purpose with
Urlacher or Branch. Karger did not object,
although some details of that conversation
are disputed: Karger testified that, during
their conversation, Eastburg promised
that the Cross Country LLCs would pay
BUKE $500 for each vehicle it purchased
using the GM Badge, while Eastburg said
that he does not remember making this
promise and that he never would have
made it because that amount would be
excessive. The Cross Country LLCs never
paid BUKE a per-vehicle fee.
{10} Once BUKE began operating the
Tucumcari Dealership in 2006, Eastburg
arranged with one of BUKE’s employees to
obtain GM Badges for himself and others
working for him to purchase vehicles at
closed GM auctions. BUKE’s employees
understood that Eastburg was authorized
to do so. Thereafter, Eastburg used the
GM Badges to purchase and sell vehicles
for BUKE, the Lovington Dealership, and
the Cross Country LLCs. Eastburg also
arranged with BUKE’s employees for the
Cross Country LLCs to reimburse BUKE
for the vehicles that were purchased for
them at GM auctions on the Credit Line.
The Cross Country LLCs’ lender, New
Mexico Bank & Trust, was aware that
Eastburg was purchasing vehicles for the
Cross Country LLCs on BUKE’s Credit
Line.
{11} Eastburg publicized that he was
using the GM Badge and Credit Line to
purchase vehicles for all of the dealerships
he operated. For instance, in March 2007,
Eastburg gave an interview for an article
published in the New Mexico Business
Weekly. That article discussed all of the
dealerships Eastburg operated, referring to
them collectively as “Cross Country” notwithstanding their different ownerships. It
also stated that “[t]he GM Tucumcari deal
is huge because it will give Eastburg access
to all GM auto auctions, as well as to GM
financing for his inventory of cars, both
new and used.” BUKE posted the article on
its website. Eastburg also spoke openly to
Albuquerque newspapers about “moving
inventory between the various stores with
which [he] was affiliated[.]”
3.Perner’s Determinations
Concerning the Credit Line
{12} Perner was not involved in BUKE’s
day-to-day bookkeeping. However, in May
2008, Eastburg, on behalf of BUKE, hired
Perner to perform two discrete accounting
services for BUKE: prepare tax returns
for 2006, 2007, and 2008; and prepare a
Reviewed Financial Statement (RFS) for
2007. Perner had previously prepared
tax returns for two of the Cross Country
LLCs. Shortly after BUKE hired him as an
accountant, Perner also became a member
of a newly created business, Cross Country
Auto Parts, LLC, whose other members
were Eastburg, two Cross Country Members, and three other individuals.
{13} While preparing the RFS in May
2008, Perner determined that the Credit
Line was “out of trust,” meaning that the
amount BUKE owed GMAC exceeded the
value of BUKE’s inventory on the car lot
floor at the Tucumcari Dealership. Perner
also determined that one of the Cross
Country LLCs had six BUKE vehicles in
its inventory for which it had not paid
BUKE. The RFS disclosed this. Perner gave
multiple copies of the RFS to Eastburg
to distribute to BUKE’s other members.
Both the RFS and the tax returns were
accurate and correct. BUKE never paid
$15,796.75 of the balance it owed Perner
for the preparation of the tax returns and
RFS.
{14} Sometime in 2008, Branch began
receiving notices from GMAC that payments were not being timely made on the
Credit Line. Because Branch was not receiving monthly financial statements from
BUKE’s bookkeeper in Tucumcari and
was unhappy to be receiving notices from
GMAC, Branch requested a meeting with
Perner, which occurred in August 2008. At
that meeting, Perner said he would ensure
that Branch started receiving the monthly
statements from the Tucumcari Dealership, but he did not disclose anything else.
{15} In January 2009, GMAC wrote
Eastburg and BUKE, advising that a recent
audit showed untimely payments on the
Credit Line for 66 out of 97 (68%) of the
vehicles audited and that GMAC would
increase BUKE’s interest rates on the
Credit Line by 100 basis points (1%) until
BUKE’s wholesale performance complied
with the requirements of the Wholesale
Security Agreement.
{16} Branch, who is the only BUKE
member who is not also an owner of the
Lovington Dealership, is also the only
BUKE member who testified that he was
not aware of Eastburg’s use of BUKE’s
GM Badge and Credit Line to benefit the
Cross Country LLCs until 2009. There is
no testimony from Urlacher in the record.
None of BUKE’s members ever objected to
Eastburg’s use of BUKE’s GM Badge and
Credit Line to purchase vehicles for the
Cross Country LLCs until Branch started
investigating the late payments on the
Credit Line.
C. Procedural History
{17} BUKE filed its complaint in June
2009 and filed an amended complaint
in February 2011. The first amended
complaint asserts the following claims:
an unjust enrichment claim against the
Cross Country LLCs and Cross Country
Members; claims for conversion, accounting, unfair competition, violation of New
Mexico’s Unfair Practices Act, intentional
interference with existing contractual
relationship, intentional interference with
prospective contractual relationship, and
violation of the New Mexico Racketeering
Act, against the Cross Country LLCs; and a
professional malpractice claim against the
Accountants.3 The Eastburg Defendants,
Eastburg Partners, and Cross Country
LLCs’ attorneys were voluntarily dismissed
from the case prior to appeal.
3 The first amended complaint also asserted claims against the Cross Country LLCs’ attorneys, the “Eastburg Defendants,” and
“Eastburg Partners,” which were voluntarily dismissed prior to appeal.
23
Advance Opinions
{18} BUKE challenges the district court’s
rulings on several motions: (1) the Cross
Country Members’ motion for summary
judgment on the unjust enrichment claim,
on the ground that they were protected
by the Cross Country LLCs’ “corporate
shield,” which the district court granted;
(2) the joint motion for summary judgment filed by the Cross Country LLCs and
Cross Country Members, on the ground
that no evidence supported the core factual allegation underlying BUKE’s claims
that Eastburg did not have permission to
use BUKE’s GM Badge and Credit Line to
benefit the Cross Country LLCs, which
the district court also granted; (3) BUKE’s
motion for summary judgment on its conversion claim, based on this same factual
issue, which the district court denied; (4)
BUKE’s motions to reconsider the rulings
on the motions filed by the Cross Country
LLCs and Cross Country Members; (5) the
Accountants’ motion for summary judgment on the accountant malpractice claim,
on the ground that BUKE did not have an
expert witness, which the district court
granted; (6) BUKE’s motion to modify the
scheduling order, including the deadline
for disclosing expert witnesses, which the
district court denied.
II.DISCUSSION
{19} We first consider the district court’s
summary judgment rulings in favor of Defendants, which we review de novo. Self v.
United Parcel Serv., Inc., 1998-NMSC-046,
¶ 6, 126 N.M. 396, 970 P.2d 582. We then
address the court’s denial of BUKE’s motion to amend the scheduling order, which
we review for an abuse of discretion. See
Reaves v. Bergsrud, 1999-NMCA-075, ¶ 13,
127 N.M. 446, 982 P.2d 497.
A. The Summary Judgment Standard
{20} “Summary judgment is appropriate where there are no genuine issues of
material fact and the movant is entitled
to judgment as a matter of law.” Self, 1998NMSC-046, ¶ 6; see Rule 1-056(C) NMRA;
Bartlett v. Mirabal, 2000-NMCA-036, ¶ 17,
128 N.M. 830, 999 P.2d 1062. The appellate
courts “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.” Romero
v. Philip Morris Inc., 2010-NMSC-035, ¶
7, 148 N.M. 713, 242 P.3d 280 (internal
quotation marks and citation omitted).
{21} Once the summary judgment movant has made a prima facie case, the burden shifts to the non-movant to establish
reasonable doubt as to the existence of
a genuine issue of material fact. Bartlett,
24
2000-NMCA-036, ¶ 17. The non-movant
may not rely on allegations or speculation,
but must come forward with admissible
evidence demonstrating a genuine issue
requiring trial and also demonstrate that
facts allegedly in dispute are material to
the claims at issue. Rule 1-056(E); Romero,
2010-NMSC-035, ¶¶ 10-11. Materiality is
determined by the governing substantive
law; the inquiry is whether the fact is necessary to give rise to a claim. Romero, 2010NMSC-035, ¶ 11. “Summary judgment is
appropriate when a defendant negates an
essential element of the plaintiff ’s case by
demonstrating the absence of an issue of
[material] fact regarding that element.”
Mayfield Smithson Enters. v. Com-Quip,
Inc., 1995-NMSC-034, ¶ 22, 120 N.M. 9,
896 P.2d 1156. Thus, summary judgment
may be granted even though disputed
factual issues remain. Tapia v. Springer
Transfer Co., 1987-NMCA-089, ¶ 8, 106
N.M. 461, 744 P.2d 1264.
B.Th e District Court Properly
Entered Summary Judgment,
Dismissing BUKE’s Claims
Against the Cross Country LLCs
and Members
1.The District Court Correctly
Concluded That Eastburg Used
BUKE’s GM Badge and Credit Line
With the Consent of a Majority of
BUKE’s Members
{22} BUKE contends that the district
court erred in entering summary judgment in favor of the Cross Country LLCs
and Members on all claims and in denying its cross motion for partial summary
judgment. The dispositive issue is whether
Eastburg used BUKE’s GM Badge and
Credit Line with the requisite permission
of BUKE’s members. For the reasons set
forth below, we affirm.
a. The Act and Operating Agreement
{23} An LLC is an entity created by statute—the New Mexico Limited Liability
Company Act (the Act), codified at NMSA
1978, §§ 53-19-1 to -74 (1993, as amended
through 2003). The stated policy of the
Act is “to give maximum effect to the
principle of freedom of contract and to the
enforceability of operating agreements of
[LLCs].” Section 53-19-65(A). This policy
is reiterated in various provisions of the
Act that explicitly state that they apply
“[e]xcept as provided” or “[u]nless as
otherwise provided” by the LLC’s articles
of incorporation or operating agreement,
or that otherwise allow for the operating
agreement to dictate aspects of the LLC’s
operation. See generally §§ 53-19-1 to -74;
see, e.g., Elf Atochem N. Am., Inc. v. Jaffari,
727 A.2d 286, 291 (Del. Super. Ct. 1999)
(“The Act is replete with fundamental
provisions made subject to modification
in the Agreement (e.g., unless otherwise
provided in a limited liability company
agreement).” (omission, internal quotation
marks, and footnote omitted)); F. Hodge
O’Neal & Robert B. Thompson, O’Neal
and Thompson’s Close Corporations and
LLCs: Law and Practice § 5:1 (Rev. 3d. ed.
2013) (“There are default rules in [LLC]
statute[s] or in the . . . articles of organization filed with the state but most of the
details about the rules for the entity are left
to the operating agreement.”).
{24} This general policy of deference to
a New Mexico LLC’s operating agreement
is manifest in the plain text of Section
53-19-15(B), which provides that “[e]ach
manager shall have such power to manage
the business or affairs of the [LLC] as the
articles of organization or an operating
agreement shall provide.” It is also clearly
expressed in Section 53-19-16(D), which
addresses use of LLC property by an LLC
manager:
Unless otherwise provided by the
articles of organization or an
operating agreement:
. . . .
D. every member who is vested
with particular management
responsibilities by the articles
of organization or an operating
agreement and every manager
shall account to the [LLC] and
hold as trustee for it any profit or
benefit he derives from:
. . . .
(2) any use . . . of the company’s
property, including confidential
or proprietary information of the
[LLC] or other matters entrusted
to him as a result of his status as a
member or manager unless:
(a) the material facts of the relationship of the interested manager or member to the contract,
transaction or use were disclosed
or known to all of the other managers or members who, in good
faith, authorized or approved the
contract, transaction or use by: 1)
the affirmative vote of a majority
of all of the disinterested managers; or 2) the affirmative vote of
all of the disinterested members,
even though all of the disinterested managers were less than a
majority of all of the managers
Advance Opinions
or even though all of the disinterested members did not have
a majority share of the voting
power of all of the members[.]
Section 53-19-16(D)(2)(a) (emphasis
added).
{25} The Act defines an “operating agreement” as “a written agreement providing
for the conduct of the business and affairs
of [an LLC.]” Section 53-19-2(O). The
“operating agreement” is, in other words,
a contract reflecting the terms governing
the LLC’s operations, as agreed to by the
LLC members.
{26} BUKE’s Operating Agreement was
entered into by its members. It contains
several provisions concerning the manager, including the following sections
relied upon by the parties:
4.1. Liability of Members. The
liability of the Members shall be
limited as provided in the Act.
The Members shall take no part
whatever in the control, management, direction or operation
of the Company’s affairs and
shall have no power to bind the
Company except when a Member is acting as a Manager. The
Manager(s) may from time to
time seek advice from the Members on major policy decisions
but need not accept such advice,
and at all times the Manager(s)
shall have the exclusive right to
control and manage the Company.
....
4.2.1. Authority. Except to the
extent otherwise provided herein,
the Manager(s) shall have the
exclusive right to manage all of
the affairs of the Company.
....
4.2.8. Prohibitions. Without
the consent of a majority of the
Members, the Manager(s) shall
not have the authority to:
....
(c)
possess the assets of the
Company (including any real
property or personal property assets), or assign rights in the assets
of the Company, for other than a
Company purpose[.]
b. Statutory Analysis
{27} “Statutory interpretation is an issue
of law, which we review de novo.” N.M.
Indus. Energy Consumers v. N.M. Pub.
Regulation Comm’n, 2007-NMSC-053,
¶ 19, 142 N.M. 533, 168 P.3d 105. Our
task is to determine and give effect to the
Legislature’s intent, looking first to the
plain language of the statute and giving
the words their ordinary meaning. Marbob
Energy Corp. v. N.M. Oil Conservation
Comm’n, 2009-NMSC-013, ¶ 9, 146 N.M.
24, 206 P.3d 135. In this case, the relevant
text is clear.
{28} As noted, Section 53-19-65(A)
plainly directs that the Act’s provisions are
to be construed “to give maximum effect to
the principle of freedom of contract and to
the enforceability of operating agreements
of [LLCs].” Just as plainly, Section 53-1916(D)(2) directs that its terms concerning
use of LLC property by a manager do not
apply if the terms of the LLC’s articles of
organization or operating agreement provide otherwise. Here, the pertinent terms
of the Operating Agreement do provide
otherwise, stating that “the Manager(s)
shall have the exclusive right to manage all
of the affairs of the Company,” and prohibiting the manager only from “possess[ing]”
or “assign[ing]” rights in the LLC’s assets for other than a company purpose
“[w]ithout the consent of a majority of
the Members[.]” (Emphasis added.) We
conclude that the statute requires that
we construe the Operating Agreement as
written and thus that Eastburg’s use of the
GM Badge and Credit Line was authorized
if consented to by a majority of BUKE’s
members.
{29} The parties disagree as to whether
Eastburg’s “use” of BUKE’s GM Badge
and Credit Line falls within the ambit of
the Operating Agreement’s prohibition
against the manager’s “possess[ion]” or
“assign[ment]” of BUKE assets “for other
than a Company purpose” unless with the
consent of a majority of BUKE’s members.
The Cross Country LLCs and Cross Country Members contend that Eastburg’s “use”
neither constituted an “assignment” nor
amounted to “possession” of those assets
and so was not prohibited at all by the
Operating Agreement. Alternatively, they
argue BUKE failed to meet its summary
judgment burden to adduce evidence sufficient to support a reasonable inference
that Eastburg lacked the consent of a
majority of BUKE members required by
the Operating Agreement.
{30} In addition to arguing that there
is a dispute of material fact on the issue
of consent, BUKE makes several arguments aiming to establish that Section
53-19-16(D)(2)(a)’s provision requiring
“the affirmative vote of a majority of all of
the disinterested managers” must govern
the manager’s “use” of BUKE’s assets,
notwithstanding that the Operating Agreement requires only consent of a majority
of BUKE’s members for the manager to
“possess” or “assign” BUKE’s assets. We
are not persuaded.
{31} For one thing, BUKE’s strained construction contravenes the express policy
of the Act “to give maximum effect to the
principle of freedom of contract and to
the enforceability of operating agreements
of [LLCs].” Section 53-19-65(A). And its
suggestion that the Act and Operating
Agreement should be read to require “the
affirmative vote of a majority of all of the
disinterested managers” for mere “use” of
BUKE assets by the manager, but only the
consent of a majority of BUKE members
for the manager to “possess” or “assign”
BUKE assets, makes no sense, as a practical matter, or as a matter of statutory
interpretation. See § 53-19-16(D)(2)(a).
We see no “irreconcilable conflict among
statutory provisions[,]” any mistake or
“absurdity that the Legislature could not
have intended,” or any other reason to
depart from the clear statutory mandate
to enforce the Operating Agreement as
written. Regents of the Univ. of N.M. v. N.M.
Fed’n of Teachers, 1998-NMSC-020, ¶ 28,
125 N.M. 401, 962 P.2d 1236.
{32} In any event, BUKE concedes that
the Operating Agreement addresses the
manager’s “use” of BUKE assets, stating
that it provides that “consent of a majority of BUKE’s members is required to use
company assets for other than a company
purpose.” Given this concession and the
plain language of the Act and Operating
Agreement, BUKE’s contentions that the
Act’s provision requiring an affirmative
vote of the majority of disinterested members applies because it is “more specific”
and that the Act’s default provisions apply unless “repugnant” to the Operating
Agreement’s terms fail. BUKE has not
cited any persuasive authority for these
arguments, and we have found none.
{33} Our conclusion that the Operating
Agreement controls on the facts of this
case comports with rulings in other states.
See NAMA Holdings, LLC v. World Mkt.
Ctr. Venture, LLC, 948 A.2d 411, 418 n.17
(Del. Ch. 2007) (noting that an LLC agreement can create a contractual inspection
right broader or narrower than that created by statute), aff ’d, 945 A.2d 594 (Del.
2008); Lenticular Europe, LLC ex rel. Van
Leeuwen v. Cunnally, 693 N.W.2d 302, 307
(Wis. Ct. App. 2005) (noting that when
provisions in the LLC statute state that
25
Advance Opinions
they apply unless otherwise provided in
an operating agreement, those provisions
allow members of an LLC to choose to be
governed by terms that differ from those
in the statute); see also Maldonado ex rel.
Maldonado v. SmithKline Beecham Corp.,
841 F. Supp. 2d 890, 894 (E.D. Pa. 2011)
(holding that the statutory default provision requiring that an LLC’s management
shall be vested in its members does not
apply where the operating agreement provided otherwise); Overhoff v. Scarp, Inc.,
812 N.Y.S.2d 809, 818-19 (Sup. Ct. 2005)
(holding that the operating agreement’s
quorum terms superseded statutory requirements); Phillip L. Jelsma and Pamela
Everett Nollkamper, The Limited Liability
Company § 1:10 (2013) (stating that one
of the primary benefits of an LLC is that
it “is a highly flexible entity”).
c.Summary Judgment on Eastburg’s
Authority Issue Was Proper
{34} BUKE contends that Eastburg failed
to inform and concealed from BUKE’s
members his use of the GM Badge and
Credit Line to benefit the Cross Country
LLCs and Cross Country Members; failed
to obtain the requisite authority from
BUKE’s members; and that this “means
that Eastburg’s use of BUKE’s credentials
and credit line was unauthorized.” Having
determined as a matter of law that Eastburg’s actions were authorized if he had the
consent of a majority of BUKE’s members
as required by the Operating Agreement,
we consider whether the summary judgment record supports the district court’s
rulings in favor of the Cross Country
LLCs and Cross Country Members on the
consent issue.
{35} We frame the analysis. Our task is
to interpret and apply the terms of BUKE’s
Operating Agreement as written; we may
not rewrite the contract the members
made for themselves. See CC Hous. Corp.
v. Ryder Truck Rental, Inc., 1987-NMSC117, ¶ 6, 106 N.M. 577, 746 P.2d 1109
(“When discerning the purpose, meaning,
and intent of the parties to a contract, the
court’s duty is confined to interpreting the
contract that the parties made for themselves, and absent any ambiguity, the court
may not alter or fabricate a new agreement
for the parties.”); see also W. Farm Bureau
Ins. Co. v. Carter, 1999-NMSC-012, ¶ 4,
127 N.M. 186, 979 P.2d 231 (noting that
contract interpretation is a matter of law
reviewed de novo).
{36} Unlike Section 53-19-16(D), which
the members chose not to adopt, BUKE’s
Operating Agreement provides no spe26
cific requirements by which a manager
must obtain member consent, such as
prior, written, or express consent; nor can
we read any such requirement into the
Operating Agreement, where BUKE has
presented no evidence that its members
intended to include it. See Espinoza v.
Town of Taos, 1995-NMSC-070, ¶ 15, 120
N.M. 680, 905 P.2d 718 (“We will not read
into a contract conditions not intended
by the parties.”). We therefore apply the
Operating Agreement’s requirement that
a majority of BUKE’s members “consent”
using the ordinary meaning of the word.
See Crownover v. Nat’l Farmers Union
Prop. & Cas. Co., 1983-NMSC-099, ¶ 16,
100 N.M. 568, 673 P.2d 1301 (“Absent
express language to the contrary, a court
should apply the every day meaning in
interpreting the terms of a contract.”).
Without any modifier, “consent” simply
means “[a]greement, approval, or permission as to some act or purpose,” which
can be inferred. See Black’s Law Dictionary 346 (9th ed. 2009); Webster’s II New
College Dictionary 240 (1995) (defining
consent, in part, as “[v]oluntary allowance
of what is planned or done by another”);
c.f. Kilpatrick v. Motor Ins. Corp., 1977NMSC-019, ¶ 13, 90 N.M. 199, 561 P.2d
471 (noting that when an automobile
insurance policy requires that permission
of the named insured must be obtained
for another to use the vehicle, and that
the person granted permission to use the
vehicle must act within the scope of that
permission, permission may be implied
from the conduct of the insured, including the insured’s lack of objection); Jessen
v. Nat’l Excess Ins. Co., 1989-NMSC-040,
108 N.M. 625, 776 P.2d 1244 (stating that
under New Mexico law, ratification may
be inferred by a principal’s acquiescence
in the results of an unauthorized act of
an agent), abrogated on other grounds as
recognized by Teague-Strebeck Motors, Inc.
v. Chrysler Ins. Co., 1999-NMSC-109, 127
N.M. 603, 985 P.2d 1183; Ulibarri Landscaping Material, Inc. v. Colony Materials,
Inc., 1981-NMCA-148, ¶ 15, 97 N.M. 266,
639 P.2d 75 (“One may infer affirmance by
a principal of an unauthorized transaction
of its agent from the principal’s failure to
repudiate it.”). The parties do not dispute
that the question whether there is a “majority” of BUKE’s members is determined
using the ownership percentages of each
member.
{37} The Cross Country LLCs and Cross
Country Members cite the following undisputed facts in support of their prima
facie contention that Eastburg used the
GM Badge and Credit Line with the consent of a majority of BUKE’s members. See
Romero, 2010-NMSC-035, ¶ 10 (stating
that a summary judgment movant meets
its “initial burden of establishing a prima
facie case” when it presents “such evidence
as is sufficient in law to raise a presumption of fact or establish the fact in question
unless rebutted” (internal quotation marks
and citation omitted)).
{38} When BUKE selected Eastburg as
its manager, BUKE’s other members knew
that Eastburg already operated and would
continue to operate the Cross Country
LLCs. After Eastburg became BUKE’s
manager, BUKE adopted the “Cross Country Auto Sales” name for its Tucumcari
dealership. Eastburg spoke openly to the
media about the relationship between
the Tucumcari, Albuquerque, and Lovington Cross Country LLC dealerships,
including the fact that he was moving
inventory among the different dealerships.
For example, Eastburg’s interview for the
2007 New Mexico Business Weekly article
makes clear that Eastburg was using the
GM Badge and Credit Line to purchase
vehicles for the Cross Country LLCs.
BUKE itself posted the Business Weekly
article on its website.
{39} In addition, BUKE’s staff and the
Cross Country LLCs’ bank were aware
of Eastburg’s use of BUKE’s GM Badge
and Credit Line for the Albuquerque
Cross Country LLCs, and BUKE’s staff
even helped implement the arrangement. Moreover, all of BUKE’s members,
except for Branch, were also owners of
the Lovington Dealership, and Eastburg
used BUKE’s GM Badge to benefit that
dealership as well. Finally, none of BUKE’s
members objected to Eastburg’s use of the
GM Badge and Credit Line for three years,
until Branch discovered that BUKE was
late making payments on the Credit Line.
{40} This undisputed evidence establishes that Eastburg never concealed his
intention to use the GM Badge and Credit
Line to purchase vehicles for the Cross
Country LLCs; that members within
BUKE, including Karger, knew of Eastburg’s intention, and that Eastburg’s use
of the GM Badge and Credit Line for this
purpose was made public, including by the
posting of Eastburg’s interview on BUKE’s
own website. This evidence, in conjunction
with the facts that for three years none
of BUKE’s members objected, and that
Karger and Urlacher also benefitted from
the same arrangement in their capacity
Advance Opinions
as owners of the Lovington Dealership
during that time, is sufficient to establish
a presumption of fact (i.e., a prima facie
case) that a majority of BUKE’s members
(Eastburg (32.5%), Urlacher (32.5%), and
Karger (15%)) consented to Eastburg’s
use of the GM Badge and Credit Line to
purchase vehicles for the Cross Country
LLCs. As a result, the burden shifted to
BUKE “to demonstrate the existence of
specific evidentiary facts which would
require trial on the merits.” Id. (internal
BUKE failed to meet that burden.
{41} The only direct evidence relied upon
by BUKE to support its contention that
Eastburg lacked the requisite consent is
Branch’s deposition testimony that he did
not know about or consent to Eastburg’s
use of the GM Badge and Credit Line to
LLCs. BUKE presented no affidavit or deposition testimony from Urlacher. Instead,
it simply asserts that we should infer that
Urlacher did not consent from Branch’s
testimony that Branch did not know or
consent, and Eastburg’s testimony that
he did not remember having a conversation with either Branch or Urlacher about
using the GM Badge and Credit Line for
the Cross Country LLCs. BUKE does not
address the fact that Urlacher (unlike
Branch) was an owner of the Lovington
Dealership, which also benefitted from
Eastburg’s use of the GM Badge and Credit
Line. Nor does BUKE attempt to rebut
the evidence that Eastburg’s use of these
assets for three years was open and even
publicized, including in an article posted
on BUKE’s own website.
{42} As to Karger, BUKE’s own evidence
confirms that he knew, beginning in 2006,
about Eastburg’s use of the GM Badge to
LLCs and did not object. Although the parties dispute whether Eastburg told Karger
that he would pay BUKE $500 for each
vehicle bought at a closed GM auction,
the dispute is immaterial. Even assuming
that Karger (15%) consented only because
of Eastburg’s alleged promise to pay $500
per vehicle, BUKE has set forth no specific evidentiary facts to demonstrate that
Eastburg (32.5%) and Urlacher (32.5%),
who together hold a majority ownership
interest in BUKE, did not consent.
{43} In sum, the specific evidentiary
facts proffered by BUKE are insufficient to
support a reasonable inference that Eastburg lacked the consent of a majority of
BUKE’s members to use BUKE’s assets as
he did. See id. (explaining that non-movant
“may not simply argue that such evidentiary facts might exist,” but “must adduce
evidence to justify a trial on the issues[,]”
which in turn “must result in reasonable
inferences” and that “[a]n inference is
not a supposition or a conjecture, but is a
logical deduction from facts proved and
guess work is not a substitute therefor”
(alteration, internal quotation marks, and
citations omitted)); Muse v. Muse, 2009NMCA-003, ¶ 51, 145 N.M. 451, 200 P.3d
104 (“[A]rguments of counsel are not
evidence.”).
{44} In view of the foregoing, we affirm the district court’s rulings granting
summary judgment in favor of the Cross
Country LLCs and Cross Country Members on their summary judgment motion
and denying BUKE’s motion for partial
summary judgment premised on the same
factual issue.
2.The District Court Properly
Granted Summary Judgment
Dismissing BUKE’s Unjust
Enrichment Claim Against the
Cross Country Members
{45} A plaintiff claiming unjust enrichment must show that “(1) another has been
knowingly benefitted at one’s expense (2)
in a manner such that allowance of the
other to retain the benefit would be unjust.” Ontiveros Insulation Co. v. Sanchez,
2000-NMCA-051, ¶ 11, 129 N.M. 200, 3
P.3d 695.
{46} BUKE’s unjust enrichment claim
against the Cross Country Members is
premised solely on the Members’ receipt
of profits and distributions from the Cross
Country LLCs and BUKE’s contention
that Eastburg used BUKE’s GM Badge
and Credit Line without the requisite consent. BUKE does not contend and has not
shown that the distributions themselves
were wrongful. To the contrary, BUKE
takes pains to point out that distributions
to members are required by the Act, as
they are by Section 3.2 of the Operating
Agreement. Nor has BUKE shown that the
Cross Country Members engaged in any
unlawful conduct. According to BUKE,
the Cross Country Members’ “receipt of
the benefits from the use of BUKE assets
was unjust because Eastburg lacked the
authority to use the [GM] credentials and
GMAC credit line for the [Cross Country
LLCs].”
{47} The Cross Country Members have
made numerous arguments in defense of
the district court’s ruling in their favor,
citing law limiting the personal liability
of LLC members for the debts and obligations of the company, including the protections provided in Section 53-19-13 (“No
member or manager of a limited liability
company . . . shall be obligated personally for any debt, obligation or liability
of the limited liability company solely by
reason of being a member or manager of
the limited liability company[.]”) and by
the doctrine of “piercing the corporate
veil,” the requirements of which BUKE
has conceded it cannot meet. We need
not address the Cross Country Members’
various arguments.
{48} Given BUKE’s stated basis for its unjust enrichment claim, the issue presented
is resolved by our conclusion that the only
reasonable inference to be drawn from
the undisputed facts is that a majority of
BUKE’s members consented to Eastburg’s
use of BUKE’s assets; that is, Eastburg’s
challenged use of BUKE’s assets was not
unauthorized, and any profits or distributions the Cross Country Members received
from the Cross Country LLCs were not
unjustly retained. The district court’s entry of summary judgment dismissing the
unjust enrichment claim was correct.
C.The District Court Properly
Entered Summary Judgment
Dismissing BUKE’s Claims
Against the Accountants
court erred when it granted summary
judgment on its accountant malpractice
claim because BUKE did not present
expert testimony to support it. BUKE
argues that the facts it presented on summary judgment demonstrate that Perner’s
alleged malpractice presents a conflict of
interest so obvious that it falls within the
common knowledge of lay jurors. We must
address whether expert testimony is necessary to establish an accountant malpractice
claim based on an accountant’s alleged
conflict of interest.
{50} Generally, a plaintiff must prove
the following elements to prevail on a
claim for professional malpractice based
on negligence: “(1) the employment of
the defendant [professional]; (2) the
defendant [professional’s] neglect of a
reasonable duty; and (3) the negligence
resulted in and was the proximate cause
of loss to the plaintiff.” Hyden v. Law Firm
of McCormick, Forbes, Caraway & Tabor,
1993-NMCA-008, ¶ 9, 115 N.M. 159, 848
P.2d 1086. Professional malpractice based
upon breach of duty concerns violations
of a standard of conduct. See Spencer v.
27
Advance Opinions
Barber, 2013-NMSC-010, ¶ 17, 299 P.3d
388. “Proof of the standard of conduct
is necessary to maintain an action for
malpractice.” Id. The standard of conduct
in a professional negligence case “is measured by the duty to apply the knowledge,
care, and skill of reasonably well-qualified
professionals practicing under similar
circumstances.” Adobe Masters, Inc. v.
Downey, 1994-NMSC-101, ¶ 3, 118 N.M.
547, 883 P.2d 133.
{51} Expert testimony is generally necessary to explain the applicable standard of
conduct, and a plaintiff ’s failure to present
expert testimony to support a professional
malpractice claim is usually fatal. See Cervantes v. Forbis, 1964-NMSC-022, ¶ 12, 73
N.M. 445, 389 P.2d 210, modified on other
grounds by Pharmaseal Labs., Inc. v. Goffe,
1977-NMSC-071, 90 N.M. 753, 568 P.2d
589; First Nat’l Bank of Clovis v. Diane,
Inc., 1985-NMCA-025, ¶ 24, 102 N.M.
548, 698 P.2d 5 (“To establish malpractice,
testimony of another attorney as to the applicable standards of practicing attorneys
is generally necessary.”). “However, if
negligence can be determined by resort to
common knowledge ordinarily possessed
by an average person, expert testimony as
to standards of [conduct] is not essential.”
Pharmaseal Labs., 1977-NMSC-071, ¶ 17;
see Adobe Masters, 1994-NMSC-101, ¶ 9
(“In professional negligence cases, both
breach of the implied warranty to use reasonable skill under contract law and negligence resulting in a finding of malpractice
must be proved by expert testimony unless
the case is one where exceptional circumstances within the common experience
or knowledge of a layman are present.”);
Walters v. Hastings, 1972-NMSC-054, ¶ 40,
84 N.M. 101, 500 P.2d 186 (“[C]ases may
arise in which the asserted shortcomings
of the attorney are such that they may be
recognized or inferred from the common
knowledge or experience of laymen.”).
{52} Under this exception, our courts
have determined that expert testimony
was not necessary in several medical
malpractice cases that posed exceptional
circumstances. For example, our courts
did not require expert testimony in a case
where a chiropractor fractured several
of his patient’s ribs while performing an
adjustment, Mascarenas v. Gonzales, 1972NMCA-062, ¶¶ 3, 13, 83 N.M. 749, 497
P.2d 751; where a physician jerked a tube
from a patient’s nose so forcefully it caused
a balloon filled with mercury to rupture
into the patient’s lungs, Pharmaseal Labs.,
1977-NMSC-071, ¶¶ 6, 17-20; where a
28
physician fractured his patient’s femur
inserting a metal pin during an operation
then left the pin partially protruding from
the bone into the soft tissue of the patient’s
leg, Eis v. Chesnut, 1981-NMCA-040, ¶¶ 3,
9-10, 96 N.M. 45, 627 P.2d 1244; or where
a physician performed five breast implant
operations on a patient, after which the implant was not even in “the general vicinity”
of where it should have been, Toppino v.
Herhahn, 1983-NMSC-079, ¶¶ 7-8, 15, 100
N.M. 564, 673 P.2d 1297. In each of those
cases, the appellate courts concluded it
would not be unreasonable for a layperson
to understand from the facts adduced that
the defendant physicians may have committed professional negligence, a decision
to be made by the fact finder or jury. Similarly, courts in other states have observed
that expert testimony was not necessary
to establish professional malpractice
where an attorney missed deadlines or
stole client funds, Meyer v. Dygert, 156 F.
Supp. 2d 1081, 1091 (D. Minn. 2001), or in
cases where an attorney failed to appear in
court on his client’s behalf, notify a client
of termination of employment, inform a
client of a settlement offer, follow a client’s
instructions and adequately insulate it
from creditors, or file an action within the
statute of limitations, Wastvedt v. Vaaler,
430 N.W.2d 561, 565 (N.D. 1988).
{53} We have not previously extended
to accountant malpractice cases the principles we apply to physicians, attorneys,
and architects concerning the necessity for
expert testimony. However, the parties do
not argue, and we do not see any reason
why we should not do so now. See, e.g.,
Rino v. Mead, 55 P.3d 13, 19 (Wyo. 2002);
Kemmerlin v. Wingate, 261 S.E.2d 50, 51
(S.C. 1979) (noting that standard of care
for accountants is the same as for doctors
and other professionals, and since that
area is beyond the realm of ordinary lay
knowledge, expert testimony is usually
necessary to establish the standard of care
and the defendant’s departure therefrom).
Accordingly, we hold that the same principles that govern the necessity for expert
testimony in other kinds of professional
malpractice cases apply to accountant
malpractice cases.
{54} BUKE argues that it has presented
undisputed evidence demonstrating that
Perner’s breach of the applicable standard
of care is so obvious that an expert is not
necessary in this case. BUKE asserts that
“[l]oyalty and betrayal are not obscure
concepts” and every person who has been
“double-crossed” can understand the di-
vided loyalties Perner faced. In particular,
BUKE claims Perner breached his duty
in two instances. First, BUKE argues that
Perner should have declined to perform
work for BUKE because he should have
known that accepting the engagement
would result in a conflict between BUKE’s
interests and those of the Cross Country
LLCs. Second, BUKE contends that, during the August 2008 meeting with Branch
and Perner, Perner should have voluntarily
told Branch that cars listed on BUKE’s inventory were on the Cross Country LLCs’
lots, that several of those cars were not yet
paid for, and that the Credit Line was “out
of trust” and “subject to call,” even though
he had previously disclosed those facts in
the RFS he provided to Eastburg on behalf
of BUKE. BUKE concludes that we should
infer from these facts that Perner faced
a conflict of interest between BUKE and
his “professional obligations” to the Cross
Country LLCs, “which made it awkward,
at a minimum, to disclose information
to BUKE adverse to the interests of his
pre-existing clients.” BUKE further claims
that Perner faced a conflict involving selfinterest because Perner had become business partners with Eastburg and several
of the Cross Country LLC Members in a
new business venture and because Perner
was to be paid $16,000 for the BUKE RFS
and full disclosure to Branch might mean
BUKE would terminate Perner’s engagement. By not volunteering information
to Branch at the August 2008 meeting,
BUKE asserts that it is obvious that Perner
“played” Branch and protected the Cross
Country LLCs, the Cross Country Members, and his own interests to the detriment
of BUKE.
{55} In our view, this case does not
present the type of exceptional circumstances that obviate the need for expert
testimony. We note that, in general, expert testimony is necessary to establish
a professional negligence claim based
on an alleged conflict of interest. See
Meyer, 156 F. Supp. 2d. at 1091 (holding
that conflict of interest claims involve
information that is not within the common knowledge of the jury); see also
Geiserman v. MacDonald, 893 F.2d 787,
793-94 (5th Cir. 1990) (holding that a
malpractice claim premised on alleged
conflict of interest or breach of fiduciary
duty requires expert testimony); Meller
v. Bartlett, 580 A.2d 484, 485 (Vt. 1990)
(holding that lack of expert testimony
was fatal to claims of conflict of interest,
failure to account, and unauthorized
Advance Opinions
hiring of another attorney). Here, Perner
was hired to prepare tax returns and an
RFS for BUKE, a car dealership owned by
an LLC. At the time BUKE hired Perner
to do its tax returns and RFS, Perner had
previously prepared tax returns for the
Cross Country LLCs. We do not believe
that an average person would commonly
know whether or how a conflict of interest might arise when an accountant
prepares tax returns for similar businesses. An average person also would
not know what information a reasonable
accountant would discover in preparing
a business’s tax returns or RFS, whether
a reasonable accountant in Perner’s position would have necessarily discovered
Eastburg’s allegedly wrongful conduct in
the scope of his work, whether a reasonable accountant should investigate any
possible wrongdoing discovered within
the course of the work to be performed,
and what form any subsequent report
of that investigation would take. To this
end, an average person would not know
whether a reasonably well-qualified
accountant would verbally disclose
in a meeting with a passive minority
member of an LLC client the same items
the accountant previously disclosed in
a written RFS it provided to the LLC’s
managing member. Further, although
this case is a conflict of interest case
and BUKE does not question Perner’s
execution of specific accounting duties,
the case is rife with questions related to
the particular technical tasks involved
in accounting, such as what an RFS is,
how an accountant prepares an RFS or a
business’s tax returns, what a credit line
is, and what it means if the credit line is
“out of trust.” None of these items falls
under the common knowledge of an
average person. In short, we conclude
that this is precisely the kind of case in
which expert testimony is necessary.
See, e.g., Brown-Wilbert, Inc. v. Copeland
Buhl & Co., 732 N.W.2d 209, 218 (Minn.
2007) (holding that, to survive a motion
for directed verdict in an accountant
malpractice case, a plaintiff must present expert testimony identifying the
applicable standard of care and opine
that the accountant deviated from that
standard and that the departure caused
the plaintiff ’s damages); Gertler v. Sol
Masch & Co., 835 N.Y.S.2d 178, 179 (App.
Div. 2007) (upholding grant of directed
verdict in accounting malpractice claim
because there was no expert testimony to
establish applicable standards of profes-
sional practice); Greenstein, Logan & Co.
v. Burgess Mktg., Inc., 744 S.W.2d 170,
185 (Tex. Ct. App. 1987) (emphasizing
that expert testimony is usually necessary to establish the requisite standard
of care and skill, a departure from that
standard, and causation in an accountant
malpractice case).
{56} To the extent BUKE relies on Spencer
to support that it does not need expert
testimony in this case, that argument
is unavailing. In Spencer, our Supreme
Court held that the Rules of Professional
Conduct may be used to “illustrate the
standard of conduct expected of a lawyer
when confronted with a conflict of interest.” 2013-NMSC-010, ¶ 18. Our Supreme
Court determined that “although the Rules
of Professional Conduct cannot be used
as a basis for civil liability, the rules may
be used to explain [a party’s] professional
obligations to [another.]” Id. ¶ 19. The issue that case addressed was “whether the
duties a lawyer owes wrongful death statutory beneficiaries are governed, in whole
or in part, by the Rules of Professional
Conduct[.]” Id. ¶ 4 (alteration, internal
quotation marks, and citation omitted).
However, our Supreme Court in Spencer
did not address whether expert testimony
would ultimately be necessary to establish
a professional malpractice claim based
on an alleged conflict of interest. Rather,
our Supreme Court explicitly noted that
the question of whether a professional
“conformed to the standard of conduct
required by the Rules of Professional
Conduct will depend on the evidence
introduced at trial.” Id. ¶ 19.
{57} Here, although citation to the applicable conflict of interest provisions of
the code of professional conduct for accountants may help illustrate the standard
of care for an accountant in a conflict
of interest case, see 16.60.5.12 NMAC
(01/01/2007), expert testimony is nevertheless required to inform the fact finder
what is considered a conflict of interest
under the code, and to resolve whether
Perner’s alleged actions violated it. See, e.g.,
Nw. Life Ins. Co. v. Rogers, 573 N.E.2d 159,
163-64 (Ohio Ct. App. 1989) (“Because
of the very nature and complexity of the
Code of Professional Responsibility and
the conduct of legal matters, expert testimony is required to support [malpractice]
allegations except in those cases which
are so patently obvious as to negate this
requirement.”); cf. Lumbermens Mut. Cas.
Co. v. Thornton, 92 S.W.3d 259, 268 (Mo.
Ct. App. 2002) (noting that, in accountant
malpractice cases, the meaning of auditing
standards and their application to the facts
of the case is a question of fact to be determined with the aid of expert testimony).
{58} We hold that, in a professional
malpractice case based on an accountant’s
purported conflict of interest, expert
testimony is necessary to establish the
applicable standard of conduct, unless
exceptional circumstances make the alleged breach so obvious that it falls within
the common knowledge of an average
layperson. BUKE failed to prove that such
exceptional circumstances exist. Because
expert testimony was required to establish
the applicable standards of conduct regarding an accountant’s conflict of interest,
and BUKE provided none, we affirm the
district court’s grant of summary judgment
on the accountant malpractice claim.
D.The District Court Did Not Abuse
Its Discretion in Denying BUKE’s
Motion to Amend the Scheduling
Order
court abused its discretion in denying its
motion to amend the scheduling order to
permit BUKE to designate an expert witness.
{60} The original complaint was filed in
June 2009. In September 2010, the district
court entered a scheduling order setting
a deadline of April 2011 for BUKE to file
and serve its expert witness disclosure
and setting a trial date in December 2011.
BUKE moved to amend its complaint in
December 2010, and filed it in February
2011, adding the Accountants as parties
and asserting a claim against them for professional malpractice. Approximately two
weeks after filing the amended complaint,
BUKE filed a stipulated notice extending
BUKE’s expert witness disclosure deadline
to May 2011. BUKE did not designate an
accountant malpractice expert witness (or
any expert witness) during that time or
seek additional time to do so.
{61} The amendment of the complaint led
to a series of recusals and peremptory challenges, and the case was finally assigned
to a district judge in May 2011. BUKE
deposed Perner in August 2011. BUKE
claims that it first requested an additional
extension of time to designate expert
witnesses at a scheduling conference in
September 2011, but the conference was
unrecorded, and there is no evidence to
support BUKE’s contention.
{62} BUKE did not file a motion to
modify the scheduling order until December 2011. The motion asserted that
29
Advance Opinions
good cause existed to “conduct limited
but necessary discovery, to file dispositive
motions, and to prepare and file a pretrial
order.” The motion did not specifically request that the expert deadline be extended,
although a proposed amended scheduling
order, attached as an exhibit, provided an
extended expert disclosure deadline. At
a March 2012 hearing, the district court
reset the trial date to July 2012 and granted
additional time to conduct limited discovery. The court did not, however, extend
the expert disclosure deadline, stating
that it was “just too late” to do so. BUKE
challenges that ruling. We review for an
abuse of discretion, which “occurs when
the [district] court’s ruling is against the
facts, logic, and circumstances of the case
or is untenable or unjustified by reason.”
Reaves, 1999-NMCA-075, ¶ 13.
{63} “A scheduling order shall not be
modified except by order of the court upon
30
a showing of good cause.” Rule 1-016(B)
NMRA. “We will not interfere with the
[district] court’s enforcement of pretrial
deadlines. Adherence to such scheduling orders [is] critical in maintaining the
integrity of judicial proceedings.” Reaves,
1999-NMCA-075, ¶ 28 (alteration, internal
quotation marks, and citation omitted).
{64} We cannot say that the district court
abused its discretion when it refused to
amend the scheduling order to allow
BUKE to designate an expert witness.
BUKE filed its motion approximately
ten months after it filed its claims against
the Accountants, eight months after the
original scheduling order deadline for
designating witnesses, and seven months
after the previously granted extension to
that deadline had expired. The motion did
not specifically request an extension on
the expert disclosure deadline. Moreover,
BUKE never identified any expert wit-
ness and does not say that it had actually
retained an expert witness by the time the
district court heard its motion, although
it had to have known that it needed to
have expert testimony to support the accountant malpractice claim asserted in the
amended complaint. See id. ¶ 27.
{65} Accordingly, the district court did
not abuse its discretion in denying BUKE’s
request to amend the scheduling order to
allow it to designate an expert witness for
its accounting malpractice claim.
III.CONCLUSION
{66} For the reasons set forth above, we
affirm the district court in all respects.
LINDA M. VANZI, Judge
WE CONCUR:
RODERICK T. KENNEDY, Chief Judge
JONATHAN B. SUTIN, Judge
Advance Opinions
MELISSA GALETTI,
Plaintiff-Appellant,
v.
DERRAL W. REEVE, KIM GILLEN, BRENDA CONYNE,
and TEXICO CONFERENCE ASSOCIATION OF SEVENTH-DAY ADVENTISTS,
Defendants-Appellees
Docket No. 32,625 (filed May 28, 2014)
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
C. SHANNON BACON, District Judge
WAYNE R. SUGGETT
MAESTAS & SUGGETT, P.C.
for Appellant
Opinion
Timothy L. Garcia, Judge
{1}Melissa Galetti (Plaintiff ) appeals
from the district court’s grant of Defendants’ motion to dismiss for failure to
state a claim pursuant to Rule 1-012(B)
(6) NMRA. The district court dismissed
Plaintiff ’s complaint against the Texico
Conference Association of Seventh-Day
Adventists (the Conference), Derral W.
Reeve, Kim Gillen, and Brenda Conyne
because it concluded that Defendants are
immune from suit pursuant to the church
autonomy doctrine, which is based on the
First Amendment. See Celnik v. Congregation B’Nai Israel, 2006-NMCA-039, ¶¶
10-11, 139 N.M. 252, 131 P.3d 102. We
conclude that the district court erred in
dismissing Plaintiff ’s complaint. The First
Amendment does not immunize every
legal claim against a religious institution or
its members, but only those claims that are
rooted in religious belief. See id.; see also
Bryce v. Episcopal Church in the Diocese of
Colo., 289 F.3d 648, 657 (10th Cir. 2002).
As pled, Plaintiff ’s claims are not rooted in
religious belief and thus do not implicate
the First Amendment as a matter of law.
EDWARD RICCO
JOCELYN DRENNAN
RODEY, DICKASON, SLOAN, AKIN
& ROBB, P.A.
for Appellees
We reverse the dismissal of Plaintiff ’s complaint and remand for further proceedings.
BACKGROUND
{2} For purposes of this appeal, “we accept
all well-pleaded factual allegations in the
complaint as true and resolve all doubts
in favor of sufficiency of the complaint.”
Madrid v. Vill. of Chama, 2012-NMCA071, ¶ 18, 283 P.3d 871 (internal quotation
marks and citation omitted), cert. denied,
2012-NMCERT-006, 294 P.3d 1243.
{3} Plaintiff alleges that she was employed
as a principal and a teacher at Crestview
Elementary School (Crestview) located
in Albuquerque, New Mexico, from 2009
to 2011. Crestview is a religious school
operated by the Conference, which is part
of the Southwestern Union and North
American Division of the Seventh-Day
Adventist Church. Plaintiff alleges that she
was harassed by her supervisor, Reeve, in
the summer of 2010.1 Plaintiff submitted a
complaint to the Conference, which issued
a written reprimand to Reeve. Plaintiff
alleges that Reeve, Gillen, and Conyne
retaliated against her, which ultimately led
to the termination of her employment.
{4} Plaintiff alleges that she was told
she would be employed as a teacher at
Crestview for the 2011-12 school year and
was not notified of a change prior to the
May 1, 2011, deadline. She filed a formal
charge of discrimination with the Equal
Employment Opportunity Commission
on May 17, 2011. Reeve raised the issue of
Plaintiff ’s employment at a board meeting
on May 23, 2012. At the meeting, which
Plaintiff did not attend, the Board voted to
terminate Plaintiff ’s employment “without
reason or cause.”
{5} Plaintiff filed a complaint for wrongful
termination asserting the following claims
for relief: (1) breach of contract against
the Conference; (2) retaliatory discharge
and violation of the New Mexico Human
Rights Act against Reeve; (3) intentional
interference with contract and civil conspiracy against Reeve, Gillen, and Conyne;
and (4) defamation and civil conspiracy
against Reeve, Gillen, and Conyne.2 Plaintiff sought compensatory and punitive
damages, interest, attorney fees, and costs.
{6}Defendants filed a motion to dismiss
pursuant to Rule 1-012(B)(6), arguing that
all of Plaintiff ’s claims are barred by First
Amendment considerations embodied in
the church autonomy doctrine. In support
of their motion, Defendants submitted
portions of the Texico Conference Employee Handbook and the Southwestern
Union Conference Education Code K-12.
Defendants also filed a motion for a protective order, arguing that they should not
have to respond to Plaintiff ’s discovery
requests. Plaintiff fully responded to these
motions.
{7} Following a hearing, the district court
issued a brief order granting Defendants’
motion to dismiss and dismissing Plaintiff ’s complaint with prejudice. The district
court stated that it found Defendants’
motion to be “well taken” but did not
otherwise explain the basis for its decision.
The district court noted that its decision
mooted Defendants’ motion for a protective order.
DISCUSSION
{8} Plaintiff contends the district court
erred in granting Defendants’ motion to dismiss because the church autonomy doctrine
does not prohibit breach of contract claims
and does not apply to individuals sued
in their individual capacity. Plaintiff also
contends the district court erred in failing to
1 Plaintiff alleges in her complaint that she was harassed “during the summer of 2011” but it is clear from the timeline of events
and other documents in the record that the alleged harassment took place in 2010, not 2011.
2 Plaintiff also asserted a claim for intentional and negligent misrepresentation against the Conference, but she voluntarily dismissed that claim.
31
Advance Opinions
convert Defendants’ motion to dismiss into
a motion for summary judgment. Because
we conclude that the district court erred in
dismissing Plaintiff ’s complaint, we do not
consider this second issue.
{9} We review the district court’s grant of
a motion to dismiss for failure to state a
claim under Rule 1-012(B)(6) de novo. See
Madrid, 2012-NMCA-071, ¶ 12. “Dismissal
under Rule 1-012(B)(6) is appropriate
only if the non-moving party is not entitled to recover under any theory of the
facts alleged in their complaint.” Madrid,
2012-NMCA-071, ¶ 18 (internal quotation
marks and citation omitted). “The purpose
of our rule is to test the law of the claim,
not the facts that support it.” Id. (internal
A. Church Autonomy Doctrine
{10} The church autonomy doctrine
“prohibits civil court review of internal
church disputes involving matters of faith,
doctrine, church governance, and polity.”
Bryce, 289 F.3d at 655. The doctrine is
based on the First Amendment, which
states in pertinent part that “Congress shall
make no law respecting an establishment
of religion, or prohibiting the free exercise thereof[.]” U.S. Const. amend. I. The
church autonomy doctrine protects both
interests embodied in the First Amendment. See Celnik, 2006-NMCA-039, ¶ 11.
“First, it prevents civil legal entanglement
between government and religious establishments by prohibiting courts from
trying to resolve disputes related to ecclesiastical operations.” Id. Second, it protects
the free exercise of religion “by limiting
the possibility of civil interference in the
workings of religious institutions[.]” Id.
{11}In Celnik, we recognized that the immunity afforded by the church autonomy
doctrine “is not absolute[.]” Id. ¶ 20. As the
Tenth Circuit Court of Appeals explained
in Bryce, the church autonomy doctrine
“does not apply to purely secular decisions,
even when made by churches.” 289 F.3d
at 657. Before a court concludes that the
church autonomy doctrine is implicated,
it must engage in the “threshold inquiry”
of determining “whether the alleged
misconduct is rooted in religious beliefs.”
Id. (internal quotation marks and citation omitted); see also Bell v. Presbyterian
Church (U.S.A.), 126 F.3d 328, 331 (4th
Cir. 1997) (describing threshold inquiry
as determining whether the dispute is
ecclesiastical or purely secular).
{12} Here, it does not appear that the
district court considered whether Plaintiff ’s claims are rooted in religious belief;
instead, it appears that the district court
simply concluded that Defendants are
immune from suit as a matter of law. We
do not believe that the church autonomy
doctrine is so easily triggered. Whether it
applies to any particular claim depends
upon the specific nature of the claim and
the remedy sought. We agree with the following:
Before barring a specific cause of
action, a court first must analyze
each element of every claim and
determine whether adjudication
would require the court to choose
between competing religious visions, or cause interference with
a church’s administrative prerogatives. . . . The court must next
examine the remedies sought by
the plaintiff and decide whether
enforcement of a judgment would
require excessive procedural or
substantive interference with
church operations.
If the answer to either of those
inquiries is in the affirmative,
then the dispute is truly of a religious nature . . . and the claim
is barred from secular court
review. If, however, the dispute
can be resolved by the application of purely neutral principles
of law and without impermissible
government intrusion . . . there
is no First Amendment shield to
litigation.
McKelvey v. Pierce, 800 A.2d 840, 856-57
(N.J. 2002) (emphasis, internal quotation
marks, and citations omitted).
B.Plaintiff ’s Breach of Contract
Claim
{13} We first consider whether the district court erred in concluding that the
church autonomy doctrine precludes consideration of Plaintiff ’s breach of contract
claim against the Conference. Plaintiff
contends the district court erred in dismissing this claim because it is secular in
nature and can be resolved without implicating the First Amendment. Defendants
contend this claim was properly dismissed
because any question regarding Plaintiff ’s
termination is a religious question in light
of Plaintiff ’s ministerial position.3 We
agree with Plaintiff.
{14} In her complaint, Plaintiff alleges
that the Conference made express and
implied promises to her concerning her
employment, which she reasonably relied
upon in accepting employment. She alleges
that the Conference breached its promises
to her, among them “the failure to timely
notify [Plaintiff] of non-renewal and [the]
failure to timely terminate her 2011-12
teaching contract year with just cause.” As
pled, it appears that Plaintiff can succeed
on her breach of contract claim without
any religious intrusion. The district court
does not need to determine whether the
Conference had cause to terminate Plaintiff ’s employment, but only whether the
Conference complied with its contractual
obligation with respect to the timeliness
of the notice it provided to Plaintiff.4
3 We assume for purposes of this appeal that Plaintiff ’s position was a ministerial one, even though she was not the head of the
congregation. See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 697, 707 (2012) (agreeing with the lower
courts that “[t]he ministerial exception is not limited to the head of a religious congregation”). We note, however, that the question of
whether a particular individual’s position should be considered ministerial is a question of fact, not of law, and thus should generally
be decided in the context of a motion for summary judgment rather than a motion to dismiss. See id. at 700, 707-09 (refusing “to
adopt a rigid formula for deciding when an employee qualifies as a minister” and concluding based on various factors that a “called
teacher” was a minister for purposes of the ministerial exception).
4 We note that the record contains a letter from the Conference to Plaintiff, dated June 1, 2011, stating that the Board voted “not
to retain [Plaintiff] as a teacher.” This letter appears to invoke the non-renewal provision set forth in the Southwestern Union Conference Education Code K-12, which states that “[t]he employing organization shall give written notice to the regular employee by
May 1 [of] its intention not to renew the annual assignment agreement.” Defendants argue in their answer brief that Plaintiff ’s breach
of contract claim cannot be examined without religious entanglement because the district court must determine whether Plaintiff ’s
termination was for cause. This might be an appropriate argument for a motion for summary judgment, but not for a motion to
dismiss. Looking at Plaintiff ’s complaint, it appears that she can succeed on her breach of contract claim without having to establish
that she was terminated without cause.
32
Advance Opinions
{15} In terms of remedy, Plaintiff does
not seek reinstatement of her teaching position, but seeks only monetary damages.
Defendants do not contend that entering
a money judgment against the Conference
would require excessive interference with
church operations. Thus, under the framework set forth in McKelvey, Plaintiff ’s
breach of contract claim does not appear
to be religious in nature and thus does not
implicate First Amendment concerns as a
matter of law.
{16} Because Plaintiff ’s breach of contract claim can potentially be resolved
without any religious entanglement, we
conclude that the district court erred in
dismissing it. See, e.g., Kirby v. Lexington
Theological Seminary, __ S.W.3d __, 2014
WL 1512223, at *11 (Ky. 2014) (concluding that ministerial employee’s breach of
contract claims survived motion for summary judgment because “(1) the enforcement of the contractual arrangement . . .
does not arouse concerns of government
interference in the selection of ministers,
and (2) the contract does not involve any
matters of ecclesiastical concern”); Second
Episcopal Dist. African Methodist Episcopal
Church v. Prioleau, 49 A.3d 812, 817-18
(D.C. 2012) (affirming the district court’s
denial of the church’s motion to dismiss
breach of contract claim and noting that
plaintiff “does not claim she was wrongfully terminated or otherwise tether her
contract claim to matters of church doctrine or governance” but “claims only that
the church failed to pay her salary after
acknowledging its obligation to do so”).
If, at some later stage in the proceedings,
it becomes apparent that Plaintiff ’s breach
of contract claim in fact turns on matters
of doctrinal interpretation or church governance, then summary judgment in favor
of the Conference may be proper. See id.
C.Plaintiff ’s Claims Against
Individual Defendants
{17} We next consider whether the
district court erred in concluding that
the church autonomy doctrine precludes
consideration of Plaintiff ’s claims against
Reeve, Gillen, and Conyne for retaliatory
discharge and violation of the New Mexico
Human Rights Act, intentional interference with contract and civil conspiracy,
and defamation and civil conspiracy.
Plaintiff contends the district court erred
in dismissing these claims because the
church autonomy doctrine does not bar
claims against individuals acting in their
individual capacities and because these
claims do not concern religious matters.
Defendants contend these claims were
properly dismissed because they arise out
of Plaintiff ’s termination as a teacher and
thus cannot be pursued in a judicial forum.
We conclude that the district court erred
in dismissing these claims because, as pled,
they do not necessarily involve religious
matters.
{18} In her complaint, Plaintiff alleges
that Reeve “engaged in false statements
and retaliatory conduct” against Plaintiff
and “orchestrat[ed] and conspir[ed]”
with Gillen, and Conyne to get Plaintiff
fired. Plaintiff alleges that Reeve, Gillen,
and Conyne “improperly used their
position and relationships with [the
Conference] . . . to cause [the Conference] to wrongfully terminate [Plaintiff ’s] employment.” And Plaintiff alleges
that Reeve, Gillen, and Conyne made
defamatory statements to third parties
concerning Plaintiff ’s work and family.
{19} Defendants contend these claims
were properly dismissed because they all
“arise from a single factual nucleus: the
termination of [Plaintiff ’s] employment as
a teacher at Crestview, a ministerial position.” As we have already discussed, the
immunity afforded by the church autonomy doctrine is not triggered simply by the
subject matter of the complaint. Instead,
the church autonomy doctrine applies only
if judicial resolution of the claims would
violate the First Amendment. This is a
fact-specific and claim-specific inquiry,
an inquiry that the district court did not
engage in here.
{20} We are not persuaded that the resolution of Plaintiff ’s claims against Reeve,
Gillen, and Conyne, as pled, will necessarily result in religious entanglement. We
thus conclude that the district court erred
in dismissing them as a matter of law. See,
e.g., Bilbrey v. Myers, 91 So. 3d 887, 89192 (Fla. Dist. Ct. App. 2012) (holding that
the district court erred in dismissing the
plaintiff ’s claim for defamation against the
pastor under the church autonomy doctrine because the claim can be adjudicated
without implicating the First Amendment); Elvig v. Calvin Presbyterian Church,
375 F.3d 951, 959 (9th Cir. 2004) (holding
that the district court erred in dismissing
the plaintiff ’s claims for sexual harassment
and retaliation because the claims might
be purely secular).
{21} If it appears at a later stage of this
case that Plaintiff ’s claims against Reeve,
Gillen, and Conyne cannot be resolved
without religious entanglement, then
those claims may properly be dismissed.
See, e.g., Jennison v. Prasifka, 391 S.W.3d
660, 668 (Tex. Crim. App. 2013) (concluding that the plaintiff ’s claims for slander,
tortious interference with a contractual
relationship, and wrongful discharge “are
inextricably intertwined with the church’s
investigation of his performance as a priest
and the discipline imposed” and thus subject to dismissal).
CONCLUSION
{22} For the reasons stated above, we
reverse the district court’s order granting Defendants’ motion to dismiss and
remand for further proceedings.
TIMOTHY L. GARCIA, Judge
WE CONCUR:
RODERICK T. KENNEDY, Chief Judge
MICHAEL D. BUSTAMANTE, Judge
33
Advance Opinions
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
RAUL TARIN,
Defendant-Appellant
Docket No. 32,650 (filed April 1, 2014)
APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
STEVEN L. BELL, District Judge
GARY K. KING
Attorney General
PRANAVA UPADRASHTA
Assistant Attorney General
for Appellee
Opinion
Timothy L. Garcia, Judge
{1} Defendant Raul Tarin appeals his conviction for speeding after a trial de novo in
the district court. He argues that the State
failed to present sufficient evidence that the
speed limit in question was under seventyfive miles per hour pursuant to NMSA 1978,
Section 66-7-301 (2002) because the State
failed to produce an engineering survey and
traffic investigation set forth in NMSA 1978,
Section 66-7-303(A) (1996). Defendant
also challenges the admission of the State’s
evidence on lack of personal knowledge and
hearsay grounds. We disagree and affirm
Defendant’s conviction for speeding.
BACKGROUND
{2}Defendant was stopped by a state
police officer and issued a traffic citation
for speeding while traveling at a speed of
seventy-one miles per hour in a posted
forty-five miles per hour speed limit
zone. Defendant was originally convicted
of speeding in the magistrate court and
again after a de novo appeal to the district
court. Defendant appeals his speeding
conviction, challenging the sufficiency of
the evidence against him based upon his
construction of the applicable speeding
statutes. Defendant asserts that the State
was required to produce an engineering
survey and traffic investigation to prove
that the legally enforceable speed limit
was below seventy-five miles per hour at
the location in question.
34
RAUL TARIN
Dexter, New Mexico
Pro Se Appellant
DISCUSSION
{3}We interpret Defendant’s arguments
to be a request that this Court review and
interpret our speed limit statutes as well
as a challenge to the sufficiency of the
evidence. Defendant also challenges the
admission of the officer’s testimony on
personal knowledge and hearsay grounds.
We begin with the analysis of our speed
limit statutes.
A.Establishing the Enforceable
Speed Limit
{4}Section 66-7-301(A) prohibits an
individual from speeding by setting
maximum speed limits for various kinds
of roads within the State. All roads within
the jurisdiction of the State, that are not
within a school zone, a business district,
a residential district, or a construction
zone, statutorily default to a maximum
speed limit of seventy-five miles per hour.
Any deviation from the default speed limit
must be determined on the basis of “an engineering survey and traffic investigation,
a detailed report of which is filed with the
traffic safety bureau of the state highway
and transportation department[.]” Section 66-7-303(A); see also § 66-7-301(C)
(permitting alteration of the speed limit in
accordance with the provisions of Section
66-7-303(A)).
{5}Defendant was cited for exceeding
the posted speed limit that had been altered and reduced to forty-five miles per
hour pursuant to the authority granted in
Section 66-7-301(C). Because the posted
speed limit had been altered from the
statutory maximum, Defendant contends
that it was insufficient to simply prove
that he had driven in excess of the posted
forty-five miles per hour speed limit. Instead, he contends that the State was further required to produce the engineering
survey and traffic investigation to prove
that the speed limit alteration in question
was appropriate. Accordingly, Defendant
contends that the State failed to present
sufficient evidence to establish the legally
altered speed limit under Section 66-7301(C) and, therefore, he was not violating
the maximum speed limit under Section
66-7-301(A). Defendant’s arguments presuppose that (1) the methods for establishing the posted speed limit are a required
element to establish a charge of speeding,
and (2) it is the State’s burden to prove the
validity of the methods for establishing the
posted speed limit. Defendant’s arguments
regarding the statutory interpretation of
Section 66-7-301 appear to be matters of
first impression before this Court.
{6} We first address Defendant’s overarching argument that the State is required to
produce an engineering survey and traffic investigation to prove the legality of a
posted speed limit that is not specifically
identified in Section 66-7-301(A). We review questions of statutory interpretation
de novo and begin by looking at the plain
language of the statute. State v. Tafoya,
2012-NMSC-030, ¶ 11, 285 P.3d 604; see
also State v. Tafoya, 2010-NMSC-019, ¶
10, 148 N.M. 391, 237 P.3d 693 (explaining that when interpreting a statute, the
appellate court seeks to determine the
Legislature’s intent by “apply[ing] the plain
meaning of the statute unless the language
is doubtful, ambiguous, or an adherence to
the literal use of the words would lead to
injustice, absurdity[,] or contradiction, in
which case the statute is to be construed
according to its obvious spirit or reason”
(internal quotation marks and citation
omitted)). Defendant’s argument on appeal is simple: that actual evidence of the
engineering survey and traffic investigation is an essential element to establish the
violation of any speed limit that is posted
below seventy-five miles per hour unless
the roadway falls within a school zone, a
business district, a residential district, or a
construction zone. See § 66-7-301(A), (B).
{7} The plain language of Section 66-7303(A) only requires the posting of a sign
giving drivers notice of an altered speed
limit and states: “[the designated] speed
limit shall be authorized and effective
Advance Opinions
when appropriate signs giving notice
thereof are erected at that particular part
of the highway[.]” No evidence, other
than evidence of a posted speed limit,
is required to establish the validity of a
speed limit. See Dahl v. Turner, 1969NMCA-075, ¶ 35, 80 N.M. 564, 458 P.2d
816 (explaining that, once alteration is
authorized, the altered speed becomes
the speed limit and notice of the alteration must be given by posting). Nothing
in Section 66-7-301 requires the State to
provide any evidence addressing how
a posted speed limit was established or
adopted. The statutory scheme strongly
indicates that the Legislature did not intend that evidence of the underlying engineering survey and traffic investigation
be a required element in nearly every case
involving a speed limit violation below
seventy-five miles per hour. Nothing in
the statute directly imposes Defendant’s
additional element for a posted speed
limit violation.
{8}To interpret Section 66-7-301 as
Defendant suggests would produce an
unworkable situation and an absurd result.
See State v. Javier M., 2001-NMSC-030, ¶
46, 131 N.M. 1, 33 P.3d 1 (recognizing an
unworkable situation and absurd result in
the interpretation of NMSA 1978, Section
32A-2-14(C) (2009)); State v. Billington,
2009-NMCA-014, ¶ 8, 145 N.M. 526,
201 P.3d 857 (“We must . . . avoid adopting a strict construction of the statutory
language if it would convey an absurd or
unreasonable result.”); State v. Galaz, 2003NMCA-076, ¶ 11, 133 N.M. 794, 70 P.3d
784 (interpreting NMSA 1978, Section
30-1-12(B) (1963) narrowly to avoid an
absurd result). As Defendant conceded in
the district court, such an interpretation of
Section 66-7-301 would require the State
to present a witness and an admissible
copy of the engineering survey and traffic
investigation for the applicable section of
roadway at nearly every trial involving a
speeding infraction below seventy-five
miles per hour. We conclude that such an
interpretation of the statute would burden
the State with needless, inefficient, and
unreasonable acts that were not contemplated by the Legislature. See State v. Young,
2004-NMSC-015, ¶¶ 26-27, 135 N.M. 458,
90 P.3d 477 (refusing to recognize an interpretation that would frustrate the legislative purpose to maintain public order and
avoid an absurd interpretation of NMSA
1978, Section 33-3-28(A) (1985)); State v.
McClaugherty, 2007-NMCA-041, ¶ 38, 141
N.M. 468, 157 P.3d 33 (interpreting NMSA
1978, Section 39-1-1 (1917) to avoid inefficiency and dual jurisdiction that would
frustrate appeals), aff ’d, 2008-NMSC-044,
144 N.M. 483, 188 P.3d 1234. As a result,
we interpret the Legislature’s intent underlying Section 66-7-301 to establish a prima
facie case for a speeding violation where
the State presents evidence that the speed
limit was posted on a visible sign along
the roadway, giving drivers proper notice
of the designated speed limit, and a driver
exceeds the posted speed limit.
{9} Defendant relies on two speed trap
cases from California to support his
argument that the State was required to
produce an engineering survey and traffic
investigation to prove that the speed limit
had been altered from seventy-five miles
per hour to forty-five miles per hour. See
People v. Earnest, 40 Cal. Rptr. 2d 304 (App.
Dep’t Super. Ct. 1995); People v. Halopoff,
131 Cal. Rptr. 531 (App. Dep’t Super. Ct.
1976). Defendant’s reliance on these speed
trap cases is misplaced.
{10} The California Vehicle Code defines
a speed trap, in part, as a prima facie speed
limit that is not justified by an engineering
and traffic survey. See Cal. Veh. Code §§
40801 to 40805 (1959, amended through
2010) (speed traps). Thus, the plain
language of the California Vehicle Code
makes an engineering and traffic survey,
or lack thereof, an essential element of a
conviction based on a speed trap violation.
Compare Cal. Veh. Code §§ 40801 to 40805
(speed traps), with § 66-7-301 and § 66-7303 (speed regulations and establishment
of speed zones); see also Cal. Veh. Code §§
22351 to 22352 (1959, as amended through
2013) (speed limit violations and prima
facie speed limits). No such requirement
exists to establish a speeding violation in
California that is not part of a speed trap
scenario. See Cal. Veh. Code §§ 22351 to
22352. Neither Section 66-7-301 nor Section 66-7-303 involve a speed trap scenario
that would require the State to produce the
engineering survey and traffic investigation from the New Mexico Highway and
Transportation Department in order to
prove the legality of a posted speed limit.
Accordingly, the district court did not err
in convicting Defendant upon the prima
facie evidence that he was driving at a
speed in excess of the posted speed limit.
B. The Officer’s Testimony
{11} We now address Defendant’s challenges to the sufficiency of the evidence to
support his conviction. Defendant asserts
that the officer’s testimony was insufficient
to prove the speed limit because the officer
did not have personal knowledge that the
speed limit was forty-five miles per hour.
See Rule 11-602 NMRA. Additionally, Defendant claims that the officer’s testimony
was based on lack of personal knowledge
and inadmissible hearsay. See Rule 11-802
NMRA.
{12} Our review of a sufficiency of the
evidence question involves a two-step
process. See State v. Apodaca, 1994NMSC-121, ¶ 6, 118 N.M. 762, 887 P.2d
756. Initially, we view the evidence in
the light most favorable to the verdict,
indulging all reasonable inferences and
resolving all conflicts in the evidence in
favor of the verdict, and then we must
“make a legal determination of whether
the evidence viewed in this manner could
justify a finding by any rational trier of fact
that each element of the crime charged
has been established beyond a reasonable
doubt.” Id. (internal quotation marks and
citation omitted). “The question is whether
the [district] court’s decision is supported
by substantial evidence, not whether
the court could have reached a different
conclusion.” In re Ernesto M., Jr., 1996NMCA-039, ¶ 15, 121 N.M. 562, 915 P.2d
318. “The reviewing court does not weigh
the evidence or substitute its judgment for
that of the fact[-]finder as long as there is
sufficient evidence to support the verdict.”
State v. Mora, 1997-NMSC-060, ¶ 27, 124
N.M. 346, 950 P.2d 789, abrogated on other
grounds as recognized by Kersey v. Hatch,
2010-NMSC-020, ¶ 17, 148 N.M. 381, 237
P.3d 683.
{13} The citing officer testified on behalf
of the State and stated that he had been
employed with the New Mexico State
Police for five years, had patrolled this
area in the past, regularly passed through
the area, and had personal knowledge of
the posted speed limit. The officer further
testified that he was on duty on the evening
in question, and as he was approaching an
S-shaped curve, he observed Defendant’s
vehicle coming around the curve “at a
high rate of speed.” Using his radar device,
the officer clocked Defendant’s speed
at seventy-one miles per hour. According to the officer, the posted speed limit
was forty-five miles per hour. The officer
described the three places in the area
where signs were posted stating that the
speed limit was forty-five miles per hour,
and the officer described the signs and
the geographic location of each of those
signs. Based upon the officer’s testimony,
the State presented sufficient evidence that
the posted speed limit was forty-five miles
35
Advance Opinions
per hour and that Defendant was traveling well in excess of the posted limit. See
State v. Dowling, 2011-NMSC-016, ¶ 20,
150 N.M. 110, 257 P.3d 930 (noting that
an evidentiary review involves “deference
to the resolution of factual conflicts and
inferences derived therefrom, and a legal
determination of whether the evidence
viewed in this manner could support the
conviction” (internal quotation marks and
citation omitted)).
{14} Defendant argues that the officer’s
testimony constituted inadmissible hearsay. Our appellate courts review the district
court’s decision to admit evidence for an
abuse of discretion. See State v. Guerra,
2012-NMSC-014, ¶ 36, 278 P.3d 1031.
Without specifically articulating his hearsay claim, Defendant asserts that Rule 11803 NMRA prohibits police officers from
testifying as to hearsay. In support of this
argument, Defendant relies on the public
records exception, which precludes the
reports of law enforcement personnel to
be admitted as public records in criminal
cases. See Rule 11-803(8)(a)(ii) (stating
that “[t]he following are not excluded
by the rule against hearsay, regardless of
whether the declarant is available as a witness . . . [a] record or statement of a public
office if . . . it sets out . . . a matter observed
while under a legal duty to report, but
not including, in a criminal case, a matter
observed by law-enforcement personnel”
(emphasis added)). We are not persuaded
that Rule 11-803(8)(a)(ii) applies in this
case because there is no evidence that the
State attempted to offer the police officer’s
36
report into evidence as a public record.
To the contrary, the officer testified that
he personally observed Defendant traveling at seventy-one miles per hour in an
area where there were three posted speed
limit signs stating that the speed limit was
forty-five miles per hour. As a result, the
district court did not abuse its discretion
by admitting the officer’s testimony.
{15} Defendant also argues that the officer lacked personal knowledge because
he did not know who posted the speed
limit signs, and this lack of knowledge
constitutes hearsay. See Rules 11-602 (defining personal knowledge) and 11-801(C)
NMRA (defining hearsay). We disagree. To
the extent that Defendant is also arguing
that the hearsay rule would not allow the
officer to rely on the speed limit signs that
stated that the speed limit was forty-five
miles per hour, Defendant failed to fully
develop this argument or establish how
it was preserved below. See Garcia ex rel.
Garcia v. La Farge, 1995-NMSC-019, ¶ 27,
119 N.M. 532, 893 P.2d 428 (“To preserve
an issue for appeal, it must appear that
a ruling or decision by the district court
was fairly invoked.” (internal quotation
marks and citation omitted)). Because
this Court does not review unclear or undeveloped arguments, we will not address
this hearsay argument further. See State v.
Fuentes, 2010-NMCA-027, ¶ 29, 147 N.M.
761, 228 P.3d 1181; see also Elane Photography v. Willock, 2013-NMSC-040, ¶ 70,
309 P.3d 40 (“To rule on an inadequately
briefed issue, [an appellate court] would
have to develop the arguments itself, ef-
fectively performing the parties’ work for
them. . . . It is of no benefit either to the
parties or to future litigants for this Court
to promulgate case law based on our
own speculation rather than the parties’
carefully considered arguments.”). For
the foregoing reasons, we conclude that
there were no hearsay violations arising
from the citing officer’s testimony that was
based upon his personal observations and
personal knowledge of the evidence.
CONCLUSION
{16} Viewing the evidence in the light
most favorable to the district court’s verdict, we conclude that there was sufficient
evidence to support the district court’s
conclusion that Defendant was driving
seventy-one miles per hour in a posted
forty-five miles per hour speed limit zone.
Because the State was not required to
present an engineering survey and traffic
investigation as a prima facie element in
the charge of speeding, the posted speed
limit of forty-five miles per hour was
sufficient to establish the statutory speed
limit under Section 66-7-301. Finally, the
district court did not abuse its discretion
by admitting the officer’s testimony about
the posted speed limit and the citation issued to Defendant. We affirm Defendant’s
conviction for speeding.
TIMOTHY L. GARCIA, Judge
WE CONCUR:
JONATHAN B. SUTIN, Judge
LINDA M. VANZI, Judge
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Classiﬁed
Positions
County Attorney
Lea County, New Mexico
(Pop. 65,000)
Salary $104,000 - $160,000 (DOQ)
Lea County is seeking an in-house attorney
and legal advisor to the County Commission,
County Manager, and County departments.
Excellent fringe benefit package. Graduation
from an accredited college of law and a license
to practice law in the State of New Mexico is
required, along with a minimum of 5 years
of progressively responsible legal experience.
Priority will be given to those who have
demonstrated experience in local government law; risk management, employment
law, land use, contracts, eminent domain,
public records. Job Description is available
at www.mercergroupinc.com. Send electronic
copy of your resume, references and letter of
interest by September 25, 2014 to Gustavo
“Gus” Córdova at The Mercer Group Inc.,
[email protected].
Assistant Trial Attorney, Senior Trial
Attorney, and Deputy District
Attorney positions
The Ninth Judicial District Attorney’s Office,
located in Curry and Roosevelt Counties, is
now accepting resumes for Assistant Trial
Attorney, Senior Trial Attorney, and Deputy
District Attorney positions. Salary will be
commensurate with experience and budget
availability. Excellent benefits available.
Please send a cover letter, resume and references to Andrea Reeb, District Attorney, 417
Gidding, Ste 200 Clovis, NM 88101.
Estate Planning and
Probate Attorney
5 years + experience with Elder Care, Estate
Planning and Probate issues, licensed and
in good standing in New Mexico. Please
send resume to [email protected] or fax
to 866.518.1090
Associate Trial Attorney/
Assistant Trial Attorney or
Senior Trial Attorney
Colfax County
The Eighth Judicial District Attorney’s Office
is accepting applications for two (2) vacant
attorney positions as an entry level Associate
Trial Attorney, Assistant Trial Attorney or Senior Trial Attorney in the Raton Office. These
positions will be responsible for a felony and
misdemeanor caseload plus administrative duties. Salary will be based upon experience and
the District Attorney Personnel and Compensation Plan. Please send cover letter and resume
to email [email protected] or by mail
to Daniel L. Romero, Chief Deputy District
Attorney, 105 Albright Street, Suite L, Taos,
New Mexico 87571. Positions open until fi lled.
39
Request for Applications
City of Albuquerque
Assistant City Attorney Position
ASSISTANT CITY ATTORNEY: Assistant
City Attorney position available with Municipal Affairs Program working directly
with the City’s Municipal Development Department through the Office of the City Attorney. The City of Albuquerque is seeking
a well qualified, results-oriented contract
lawyer with preferred government business
experience. This position will be responsible
for a wide variety of contracts, assisting
other attorneys and many city departments
on various design and municipal construction procurement and administration issues.
Requirements: expertise in State and local
procurement law and regulation, particularly
New Mexico; ability to draft complex, routine
and non-routine contractual instruments;
knowledge of contract concepts and applicable State and local contract acquisition
law and regulations, excellent analytical and
communication skills; use of independent
judgment and creativity applied to resolution of contract issues and excellent internal
and external negotiation skills. Salary will
be based upon experience and the City of
Albuquerque Attorney’s Personnel and Compensation Plan with a City of Albuquerque
Benefits package included Salary range of
$41,900.00 to $83,900.00 depending on experience. Please submit résumé to attention
of “DMD Attorney Application”; c/o: Roberta
Duran, Fiscal Officer; P.O. Box 2248, Albuquerque, NM 87103. Application deadline is
September 26, 2014
Attorney
The civil litigation firm of Atkinson, Thal
& Baker, P.C. seeks an attorney with strong
academic credentials and 2-10 years experience for a successful, established complex
commercial and tort litigation practice. Excellent benefits. Tremendous opportunity for
professional development. Salary D.O.E. All
inquiries kept confidential. Send resume and
writing sample to Atkinson, Thal & Baker,
P.C., Attorney Recruiting, 201 Third Street
NW, Suite 1850, Albuquerque, NM 87102.
Full Time Personal Injury Attorney
Ron Bell, Hughes and Coleman Law Firm
Our busy personal injury firm is seeking
a full time Personal Injury Attorney. New
Mexico licensure is required, as well as one
to three years of personal injury experience
and strong academic credentials. Qualified
candidates will be highly motivated, client
oriented and will enjoy working in a fastpaced environment. If you are interested in
this exciting opportunity, please e-mail the
following to [email protected]
Letter of interest, Resume, College Transcript
** All correspondence MUST reference “Full
Time Attorney" Albuquerque
40
Associate Attorney
Downtown insurance defense firm seeking
an associate attorney with less than 10 years
of litigation experience. Excellent salary and
benefits. Will consider experienced attorney
if bringing clients. Must have excellent academic background, be able to take depositions, be organized, and able to work with
our staff, our clients, and plaintiff’s counsel.
Collegial working environment in newly remodeled downtown office, with opportunity
for advancement. Successful candidates have
strong organizational and writing skills, and
exceptional communication skills, including
the ability to interact and develop collaborative relationships. Please e-mail your resume
and list of references to [email protected].
Senior Children’s Court
Attorney Position
The Children, Youth and Families Department is seeking to fill a vacant Children’s
Court Attorney position to be housed in
Farmington, New Mexico. Salary is up to
$69,035.20 annually, depending on experience and qualifications. The position will
represent the Department in abuse/neglect,
termination of parental rights proceedings
and related matters - primarily in San Juan
county. The ideal candidate will have experience in the practice of law totaling at least
four years. New Mexico licensure is required.
Benefits include medical, dental, vision, paid
vacation, and a retirement package. For information, please contact; David Brainerd,
Managing Attorney, at (505) 327-5316 ext.
1114. To apply for this position, go to www.
state.nm.us/spo/. The State of New Mexico
is an EOE.
Family Law Practitioner
Position available for Family Law Practitioner
with 5 years or more experience as a licensed
NM Attorney. Please email resume to ac@
lightninglegal.biz or fax to (505) 989-3440.
Prosecutor
Prosecutor wanted for immediate employment with the Seventh Judicial District Attorney’s Office, which includes Catron, Sierra,
Socorro and Torrance counties. Employment
will based primarily in Sierra County. Must
have a minimum of 4 years criminal law
experience and must be willing to relocate
within six months of hire. Salary range:
$52,422 - $64,000. Salary will be commensurate with experience and budget availability.
Send resume to: Seventh District Attorney’s
Office, Attention: J.B. Mauldin, P.O. Box 1099,
302 Park Street, Socorro, New Mexico 87801.
Licensed NM Attorney Needed
The skies the limit - its up to you! We have
the capacity to fulfill dreams. Please fax your
resume to 866-531-6526.
Assistant District Attorney
The Fifth Judicial District Attorney’s office has an immediate position open to a
new or experienced attorney. Salary will be
based upon the District Attorney Personnel and Compensation Plan with starting
salary range of an Associate Trial Attorney
to a Senior Trial Attorney ($41,685.00 to
$72,575.00). Please send resume to Janetta
B. Hicks, District Attorney, 400 N. Virginia
Ave., Suite G-2, Roswell, NM 88201-6222 or
e-mail to [email protected].
Staff Attorney
The Hartford currently has an in-house remote work opportunity for a Staff Attorney in
New Mexico. This remote work opportunity
is flexible within the Albuquerque or Santa
Fe area(s). Minimum 5+ years law practice,
preferably within the insurance defense
industry dealing with tort/general liability
matters. Workers’ compensation experience
preferred. Please submit resume to lorraine.
[email protected].
Attorney – State Bar of New Mexico
The State Bar of New Mexico is seeking a halftime (20 hours/week) attorney for its Legal
Resources for the Elderly Program (LREP).
LREP provides clients with legal advice and
brief services in many areas of civil law including: consumer issues, estate planning, probate,
government benefits, employment law, and
landlord/tenant law. Job duties include providing advice to LREP clients through the LREP
legal helpline, and presenting workshops and
legal clinics throughout New Mexico (requiring
in-state, over-night travel approximately once
a month). The successful applicant must have
experience in relevant areas of civil law, excellent people skills, and strong organizational
capabilities. Spanish fluency and prior public
speaking experience are a plus. Work hours
are 20 hours per week with a somewhat flexible schedule. Annual compensation is $26,000
DOE. Please email cover letter, resume, and
three professional references to [email protected].
Pt/Ft Attorneys
Jay Goodman and Associates Law Firm PC
is expanding and seeking PT/FT attorneys to
be based out of our Santa Fe New Mexico Offices. Applicants must be licensed and in good
standing in New Mexico with 10 years or more
experience in Family Law and Civil Litigation.
Candidates must be highly motivated, innovative, able to function independently as well
as within a team, and consistently interface
with computerized time keeping and calendar
systems. The successful applicant must possess excellent client communications, computer, research, writing and courtroom skills.
Compensation level DOE. All replies will be
maintained as confidential. Fax resume, salary
history and letter of interest to 505.989-3440
or email to [email protected]
Associate Attorney
Vigil Law Firm, P.A., an established AV rated
Law Firm in Albuquerque, NM, seeks an Associate Attorney with 0-5 years experience
who is enthusiastic, personable, and possesses
strong research and writing skills for work
in Medical Malpractice, Products Liability,
and General Negligence Litigation for busy
Plaintiffs’ practice. Please email resume,
references, and a writing sample to admin@
zlaws.com.
Attorney
Little, Bradley & Nesbitt, PA, is seeking attorney to handle residential foreclosure cases,
including litigation. No billable hours requirement. Prior foreclosure, real estate title,
&/or litigation experience required. Send
cover letter, resume, salary requirements &
references to [email protected], fax to
254-4722 or mail to PO Box 3509, Alb 87190.
Attorneys
Attorneys needed, 1 requires litigation exp.
for court hearings &/or trials, mediations,
discovery, mentoring newer attorneys...2nd
attorney, 0-3 yrs exp. (exp. a plus). Must be
able to multi-task in a high volume, fast-paced,
reputable, rapidly growing law firm rep. numerous nationwide banking clients. Foreclosure
& bankruptcy exp. a plus. Nice office in the
Journal Center area & great training program
– be a part of our new staff addition & building
expansion! Join our successful & growing firm!
Good benefits (hol, vac, sick, health, dent, retir.
& more). Submit in conf. cover letter, resume,
sal hist & req to [email protected]
Entry Level Associate Attorney
The Deschamps Law Firm, LLC, in Socorro, NM
has an opening for an entry level associate attorney. Opportunity to earn proprietary interest
in established firm within the Seventh Judicial
District. Must relocate to Socorro area. Please
submit resume to shiloh@deschampslawfirm.
com or to P.O. Drawer 389, Socorro, NM 87801.
Pueblo of Laguna - Attorney
The Pueblo of Laguna is seeking applications
from individuals interested in an ATTORNEY position. The individual will serve as a
legal advisor, representative and counselor to
the Pueblo of Laguna. Assists in legal litigation or disputes to protect tribal sovereignty.
Graduate of law school with minimum of 7
years of relevant work experience in three of
the following: federal Indian law; commercial transactions; leasing; construction law;
experience performing complex litigation for
tribal governments; and code development
required. Licensed with State of NM or within
one year of employment. For additional details about the Pueblo and the position, go to
www.lagunapueblo-nsn.gov and click on Employment Opportunities or call the Pueblo’s
Human Resources Office at (505) 552-6654.
District Public Defenders:
12th Judicial District
Attorney Supervisor
The Law Offices of the New Mexico Public
Defender is recruiting applicants for the position of District Public Defender for the Alamogordo District. This is an exempt position
within a state agency which is overseen by an
independent commission and reports directly to the Deputy Chief Public Defender. The
District Public Defender position is a high
senior level trial and management position
within the agency and will be responsible for
all department operations in their assigned
judicial districts. Qualified applicants must
be licensed to practice law in New Mexico or
admitted to the New Mexico State Bar Association within one year of appointment, have
a minimum of eight years criminal litigation
or appellate experience at the misdemeanor
and felony level. Additionally applicants must
have a minimum of three years of experience
managing a law office to include attorney
and non-attorney staff. Salary range is from
$53,557.92 to $ 132,557.57 annually and will
depend on experience. Please direct questions to Barbara Auten, HR Director, at (505)
500-6486. Application deadline is 12:00 p.m.
October 3, 2014. Please fax resume, letter of
interest, five professional references with
contact information and a writing sample to
(505) 476-0357, or e-mail at Barbara.Auten@
lopdnm.us. The State of New Mexico is an
equal opportunity employer.
The Third Judicial District Court in Las Cruces
is accepting applications for a full-time classified Attorney Supervisor. Requirements include
admission to the NM State Bar plus a minimum
of five years experience in the practice of applicable law, of which two years must have been as
a supervisor. Under administrative direction,
as assigned by a Judge, duties include but are
not limited to: supervise two to four Associate
Attorneys and support staff; provide legal advice and opinions; review cases; perform legal
research, evaluation, and analysis; write and
make recommendations concerning the work
of the Court. Proof of education and admission
with NM State Bar required. Please refer to
http://www.nmcourts.gov/jobs/jobselectpage.
php for application/resume procedure. For
questions contact Briggett Becerra, HR Administrator Sr. at 575-528-8310. Deadline for
submission is: October 8, 2014.
Paralegal
Well-established personal injury law firm
in the far northeast heights is looking for
a paralegal with significant experience in
medical malpractice and auto accident cases.
Very positive working environment with
experience lawyers and staff. Salary dependent upon experience. Health insurance
and 401(k) available. Send resume to trevo@
revosmithlaw.com
Medical Malpractice Paralegal
Deputy Chief Public Defender
The Law Offices of the New Mexico Public
Defender is recruiting applicants for the
position of Deputy Chief Public Defender.
This is an exempt position within a state
agency which is overseen by an independent
commission and reports directly to the Chief
Public Defender. The Deputy Chief Public
Defender is an executive management position within the agency and is responsible for
agency operations throughout the state which
will require periodic overnight travel. Qualified applicants must be licensed to practice
law in New Mexico or admitted to the New
Mexico State Bar Association within one year
of appointment, have a minimum of ten years
criminal litigation or appellate experience
at the misdemeanor and felony level. Additionally applicants must have a minimum
of three years of experience managing a law
office to include supervising attorney and
non-attorney staff which includes experience
managing statewide or regional programs.
Salary range is from $59,051.20 to $146,150.58
depending on experience. Please direct questions to Barbara Auten, HR Director, at (505)
500-6486. Application deadline is 12:00 p.m.
October 3, 2014. Please fax resume, letter of
interest, five professional references with
contact information and a writing sample to
(505) 476-0357, or e-mail at Barbara.Auten@
lopdnm.us. The State of New Mexico is an
equal opportunity employer.
Keleher & McLeod seeks a full-time, experienced Medical Malpractice Paralegal. Must
have current experience which involves
procurement, analysis and the ability to summarize case-related documents and, have substantive knowledge of the procedures relating
to complex litigation matters and E-Discovery
procedures. In addition, candidate must have
trial experience and the ability to manage a
case in its entirety. Successful candidate will
take ownership of projects and complete assignments on time. We offer a professional
work environment with full benefits. E-mail
résumés to [email protected] or
fax to 346-1370, attn: Patricia Sesma.
Paralegal
Stiff, Keith & Garcia, LLC, a successful
insurance defense firm, seeks sharp, energetic paralegal. Must be a self-starter,
detail-oriented, organized, and have excellent
communication skills. A four-year degree or
paralegal degree, and insurance defense and/
or personal injury experience required. Bilingual in Spanish a plus. Please e-mail your
resume and list of references to resume01@
swcp.com.
Paralegal/Secretary
Paralegal/Secretary with NM Personal Injury
and Probate experience. Send resume, work
and salary history Morris Law Firm. 901
Lomas Blvd. NW Albuquerque, NM 87102
41
Needed: Contract Paralegal for
Mortgage Foreclosures
We are looking for a contract paralegal with
extensive experience in foreclosure matters
to work on a handful of foreclosure files and
see them through to completion on an hourly
basis. Please fax resume with references to
Office Manager at 505-842-8200.
Services
Briefs, Research, Appeals--
Leave the writing to me. Experienced, effective, reasonable. [email protected]
(505) 281 6797
Trial Technician
Legal Assistant/Receptionist
Position at Walk-In Wills, an estate planning
law firm. Do you have a friendly, pleasant
demeanor and the ability to communicate
in a professional manner? This position is
responsible for greeting new clients, answering multi-line phones, maintaining client
satisfaction, computer/word processing,
filing and general office skills. Experience
preferred in estate planning but will train
the right applicant. Computer skills testing
before hire. Full-time position, M-F, 9-5 &
paid time off. E-mail cover letter and resume
to [email protected].
Experienced, certified court technician
prepares and displays exhibits at trial. www.
legaleyenm.com, Bill Werntz (505) 264-2434
Qualified Bookkeeper Available
[email protected] 505-307-6649
Research and Writing Assignments
Licensed attorney with 7 years appellate court
experience is available for research and writing assignments, including motions, appellate briefs, issue research and memoranda of
law. Contact Lorien House at 505-715-6566
or [email protected].
Legal Assistant
Albuquerque law firm seeks experienced legal
assistant. Excellent clerical, organizational,
computer, verbal and writing skills required.
Ability to multitask in busy office, support
attorneys in litigation. Must be proficient in
court processes, filing, calendaring, drafting,
pleading, secretarial assistance and front desk
duties. Competitive salary and benefits. Send
resume to [email protected] or fax resume
to (505) 764-8585.
Legal Secretary/Assistant
Do you have 3 or more years experience as a
legal secretary? Are you familiar with civil
litigation, court rules and filing procedures?
Are your clerical, organization, computer and
word processing skills exceptional? Then send
your resume to this well respected, highly productive law firm at [email protected]
Paralegal
The Santa Fe office of Hinkle, Hensley, Shanor
& Martin seeks a paralegal for the practice
areas of environmental, water, natural
resources, real property, public utility and
administrative law. Candidates should have
a strong academic background, excellent research skills and the ability to work independently. Competitive salary and benefits. All
inquires kept confidential. Santa Fe resident
preferred. Please email resume to: gromero@
hinklelawfirm.com
42
Walking Distance to Courts
Ocho Building, 423 6th St. NW. Three
single offices available, $400.00, $550.00,
$600.00. Includes parking, all utilities
(except phone line), general receptionist,
janitorial, high-speed internet, VOIP phone
system, fax and copier available, two conference rooms, security system, and large
waiting area all included. Contact Marlene,
247-3900 [email protected]
620 Roma N.W.
620 ROMA N.W., located within two blocks
of the three downtown courts. Rent includes
utilities (except phones), fax, internet, janitorial service, copy machine, etc. All of this is
included in the rent of $550 per month. Up
to three offices are available to choose from
and you’ll also have access to five conference rooms, a large waiting area, access to
full library, receptionist to greet clients and
take calls. Call 243-3751 for appointment
to inspect.
Office Space
Office Space
For Rent: Office Space
1 office, with or without secretarial station, at
500 Tijeras Ave. NW. Downtown, convenient
to all courts, city and county offices. Offices
are shared with 7-8 other lawyers. Office
only rent is $750/mo; Office and secretarial
station rent is $1000/mo. Includes reception,
long distance telephone, use of two conference rooms, and on-site parking for staff and
clients. Contact Reina at 505-842-1905
One or Two Offices Available
One or two offices available, with one or
two adjacent work areas for support staff.
One block from Metro, District and Federal Courts. Access to conference room and
kitchen. Larger office $750.00, smaller office
$600.00, per month, including one work area
for each office. Utilities, internet, parking
and copier negotiable. Contact 505-245-7200
for details.
1, 2, or 3 offices available; plus dedicated
workstation/file space; plus shared space: two
conference rooms, restrooms, break room,
waiting areas. Services include janitorial,
reception, and all utilities, including phone
and internet. Dedicated domain space available on server, copier available. Off street
parking. $550/mo. per office. Four other law
firms in building. Near UNM Law School,
quick freeway access to downtown. Call
Shelly at 265-6491.
New Space: Best Location
“Build Out” Yourself
1469SF professional office space. Northeast
views. Can develop to Tenant’s requirements.
Prime Uptown location, high visibility, convenient access to I-40; Bank of America, companion restaurants on-site: Shopping, extensive landscaping, ample parking, full-service
lease. 6% commission to leasing office. Comcast Business Class available at Uptown Square
(includes High-Speed Internet, Telephone and
Television). Also available May 2015 -1474SF
and 2278SF. Call for more information. John
Whisenant or Ron Nelson 883-9662
Furnished Office Spaces Available:
Up-scale, full-service Executive offices
available! All inclusive amenities: Furnished
offices, Conference room, Receptionist, Internet, Phone, and Kitchen. Monthly rent,
including support services ranging from
$800-$1,200 a month. Convenient location
with a five minute drive to the Courthouses.
Contact Laurie at Albuquerque Business Law
at (505) 246-2878 if interested!
Downtown Offices
One or two offices available for rent, including secretarial areas, at 2040 4th St. NW (I-40
& 4th St.), ABQ. Rent includes receptionist,
use of conference rooms, high speed internet,
phone system, free parking for staff and clients, use of copy machine, fax machine and
employee lounge. Contact Jerry or George at
505-243-6721 or [email protected].
When First
Impressions Matter
Brought to you by the
Digital Print Center
Featuring:
• business cards
• envelopes
• stationery
• brochures
• presentation booklets
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Quality, full-color printing.
Local service with fast turnaround.
For more information, contact Marcia Ulibarri
at 505-797-6058 or [email protected]
Ask about your member discount.
DIGITAL PRINT CENTER
43
2015 Annual Meeting–
Bench and Bar Conference
Save the date!
Sept. 30-Oct. 2 (Wed.-Fri.)
k
Boo !
now
1 Lake Avenue, Colorado Springs, CO 80906 • 800-634-7711
https://resweb.passkey.com/go/SBARNM
$229 single/double*
Suites – contact the Broadmoor at 719-471-6254 or [email protected].
Parking - $22 self/day; $24 overnight valet/day
*
Cutoff date: Aug. 30, 2015

9/24 - State Bar

Transcription

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