Current Issues in

Transcription

Current Issues in

November 18, 2015 • Volume 54, No. 46
Inside This Issue
Table of Contents..................................................... 3
Animal Law Section: Annual Meeting and
Best in Show Viewing.............................................. 4
Bankruptcy Law Section: Winter Social...............4
Vote in the 2015
Board of Bar Commissioners Election..................4
Indian Law Section: Donors Needed for Bar
Preparation Scholarship Fund................................5
Hearsay/In Memoriam............................................7
Disciplinary Counsel: Disciplinary Quarterly
Report, July 1–Sept. 30, 2015................................10
Clerk’s Certificates..................................................17
From the New Mexico Court of Appeals
2015-NMCA-077, No. 32,664:
State v. Sanchez..................................................20
2015-NMCA-078, No. 33,087:
Cahn v. Berryman.............................................24
Aspens, by Julia Crooks (see page 3)
www.trulyjuliedesigns.com
Current Issues
Bankruptcy Law
Section
Time is running out!
November
Sunday
Have you earned all of your required
CLE credit for 2015?
State Bar Center • Preliminary schedule. Visit www.nmbar.org for more information.
Monday
Tuesday
Wednesday
Thursday
Friday
Saturday
19
The New Lawyer—
Rethinking Legal Services
in the 21st Century
featuring Mark E. Lassiter,
founder of The Lassiter
Law Firm
4.5 G, 1.5 EP
Live and Webcast
22
23
24
25
d
eman
On-D
!
home d
m
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r
f
man
CLE
on-de le.
y
d
u
t
Self-s ses availab r
cour bar.org fo
m
.
Visit n formation
in
more
26
27
Happy
Thanksgiving!
Telese
available minars
all
Visit nmb month.
ar.org for
more info
rmation.
Video
Replays
30 December
1 Reciprocity in New Mexico
29
3 4
2015 Real
Property
Institute
4.5 G, 2.5 EP
5.0 G, 1.0 EP
The Trial Variety:
Juries, Experts
and Litigation
6.0 G
Co-sponsor: Paralegal Division
Teleseminar
6
28
7
8
10 11
Trial Know-How!
Courtroom Skills
from A to Z
7.0 G
Co-sponsor: Trial Practice Section
Current Immigration Issues for
the Criminal Defense Attorney
5.0 G, 2.0 EP
Video
Replays
13
Looking
for
someth
ing else
?
Visit nm
b
for more ar.org
options
.
14
Mentorship
15
2.0 EP
Details
coming soon!
16
Law Practice
Navigating New Mexico
17
18
Public Land Issues
Stuart Teicher
Sucession— the CLE ‘Performer’
6.0 EP
A Little Thought
Now, A Lot Less
Panic Later
2.0 EP
Video
Replays
Video
Replays
CENTER FOR LEGAL EDUCATION
2
Bar Bulletin - November 18, 2015 - Volume 54, No. 46
5.5 G, 1.0 EP
Co-sponsor: NREEL Section
Table of Contents
Officers, Board of Bar Commissioners
Mary Martha Chicoski, President
J. Brent Moore, President-Elect
Scotty A. Holloman, Vice President
Dustin K. Hunter, Secretary-Treasurer
Erika E. Anderson, Immediate Past President
Board of Editors
Maureen S. Moore, Chair
Jamshid Askar
Nicole L. Banks
Alex Cotoia
Kristin J. Dalton
Notices ..................................................................................................................................................................4
Hearsay/In Memoriam......................................................................................................................................7
Disciplinary Counsel: Disciplinary Quarterly Report, July 1–Sept. 30, 2015...............................10
Legal Education Calendar.............................................................................................................................12
Writs of Certiorari.............................................................................................................................................14
Court of Appeals Opinions List....................................................................................................................16
Clerk’s Certificates............................................................................................................................................17
Recent Rule-Making Activity........................................................................................................................19
Opinions
2015-NMCA-077, No. 32,664: State v. Sanchez............................................................................20
2015-NMCA-078, No. 33,087: Cahn v. Berryman.......................................................................24
Advertising.........................................................................................................................................................29
Curtis Hayes
Bruce Herr
Andrew Sefzik
Mark Standridge
Carolyn Wolf
State Bar Staff
Executive Director Joe Conte
Communications Coordinator
Evann Kleinschmidt
505-797-6087 • [email protected]
Graphic Designer Julie Schwartz
[email protected]
Account Executive Marcia C. Ulibarri
505-797-6058 • [email protected]
Digital Print Center
Manager Brian Sanchez
Assistant Michael Rizzo
©2015, 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
November 18, 2015, Vol. 54, No. 46
State Bar Workshops
Meetings
November
December
18
Children’s Law Section BOD,
Noon, Juvenile Justice Center
2
Divorce Options Workshop
6 p.m., State Bar Center, Albuquerque
18
Committee on Women and the Legal
Profession, noon, Modrall Sperling,
Albuquerque
2
Civil Legal Fair
10 a.m.–1 p.m., Second Judicial District
Court, Third Floor Conference Room,
Albuquerque
20
Family Law Section BOD,
9 a.m., teleconference
20
Indian Law Section BOD,
9:30 a.m., State Bar Center
9
Consumer Debt/Bankruptcy Workshop
6 p.m., State Bar Center, Albuquerque
20Trial Practice Section BOD,
Noon, State Bar Center
Cover Artist: Julia Crooks was admitted to the Bar in October 2013 and was honored to be the inaugural law clerk of
Chief Justice Barbara J. Vigil, followed by a clerkship with Judge Michael Vigil of the Court of Appeals. She currently does
contract work as a freelance attorney. Crooksenjoys painting acrylic on canvas and drawing portraits in charcoal.
3
Notices
Court News
Supreme Court
Proposed Amendments to the
Rules Governing Pretrial Release
Following the decision in State v.
Brown, 2014-NMSC-038, 338 P.3d 1276,
the New Mexico Supreme Court created
the Ad Hoc Pretrial Release Committee
to study existing pretrial release law and
practice and make recommendations to
the Court regarding necessary changes
to improve pretrial release procedures in
New Mexico. This broad-based committee,
with representation from the criminal
defense bar, prosecution, judges, the bail
industry, jails and detention centers and
the Legislature, has made a number of
recommendations, including amendments
to Rule 5-401 NMRA, governing pretrial
decision-making in the district courts.
Following the publication period and
any resulting changes to Rule 5-401, the
committee expects to recommend corresponding revisions to Rules 6 401, 7 401,
and 8 401 NMRA, which govern pretrial
procedures in the magistrate, metropolitan
and municipal courts.
The Court will not make its final
decisions nor take action on these recommended revisions until after publication
for comment and full review by both the
committee and the Court of all resulting
input, which is an important aspect of the
rule-making process. View the full text of
the proposed amendments and instructions for submitting comments in the Oct.
21 Bar Bulletin (Vol. 54, No. 42).
Court of Appeals
Announcement of Vacancy
A vacancy on the Court of Appeals will
exist as of Jan. 1, 2016, due to the retirement of Hon. Cynthia Fry, effective Dec.
31. The chambers for this position will be
in Santa Fe. Inquiries regarding the details
or assignment of this judicial vacancy
should be directed to the administrator
of the Court. Alfred Mathewson, chair of
the Appellate Court Judicial Nominating
Commission, invites applications for this
position from lawyers who meet the statutory qualifications in Article VI, Section 28
of the New Mexico Constitution. Applications may be obtained from the Judicial
Selection website: www.lawschool.unm.
edu/judsel/application.php. The deadline
for applications is 5 p.m., Jan. 19, 2016.
Applicants seeking information regarding
election or retention if appointed should
4
Professionalism Tip
With respect to parties, lawyers, jurors, and witnesses:
I will be open to constructive criticism and make such changes as are consistent
with this creed and the Code of Judicial Conduct when appropriate.
contact the Bureau of Elections in the Office of the Secretary of State. The Appellate
Court Judicial Nominating Commission
will meet beginning at 9 a.m., Jan. 27, 2016,
to interview applicants for the position at
the Supreme Court Building in Santa Fe.
The Commission meeting is open to the
public and those who want to comment
on any of the candidates will have an opportunity to be heard.
U.S. District Court for the
District of New Mexico
Court Closure
The U.S. District Court for the District
of New Mexico will be closed Nov. 26–27
for the Thanksgiving holiday. Court will
resume on Nov. 30. After-hours access to
CM/ECF will remain available as regularly
scheduled. Stay current with the U.S. District Court for the District of New Mexico
by visiting www.nmd.uscourts.gov.
Service on Court Panel
Chief Judge M. Christina Armijo and
the Article III District Judges for the District of New Mexico solicit interest from
Federal Bar members for service on the
Magistrate Judge Merit Selection Panel.
This Panel is responsible for the selection,
appointment and reappointment of U.S.
Magistrate Judges in the District. To be
considered for appointment to the Panel,
interested Federal Bar members in good
standing should reply by Dec. 4 to the
Clerk of Court, U.S. District Court, 333
Lomas Blvd. NW, Suite 270, Albuquerque,
NM 87102; or by email to bbcrtcmt@
nmcourt.fed.us.
State Bar News
Attorney Support Groups
• Dec. 7, 5:30 p.m.
First United Methodist Church, 4th
and Lead SW, Albuquerque (The group
meets the first Monday of the month.)
• Dec. 14, 5:30 p.m.
UNM School of Law, 1117 Stanford NE,
Albuquerque, King Room in the Law
Library. To increase access, teleconference participation is now available.
Dial 1-866-640-4044 and enter code
7976003#.
• Dec. 21, 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 Hilary
Noskin, 505-449-7984 or Bill Stratvert,
505-242-6845.
Animal Law Section
Annual Meeting and
Best in Show Viewing
The Animal Law Section will hold its
annual membership meeting from 5–7:30
p.m., Dec. 2, at the State Bar Center. The
event will begin with hors d’oeuvres and
a business meeting. Best in Show, a 2000
American “mockumentary” comedy
film written and directed by Christopher
Guest, will be shown after the business
meeting. The film follows five entrants
in a prestigious dog show and focuses on
the slightly surreal interactions among
the various owners and handlers as they
travel to the show and compete, and after
the show, as well as how the personalities and characteristics of the owners
match those of their dogs. Attendees
are welcome to bring well-socialized
dogs. R.S.V.P. to Heather Kleinschmidt,
[email protected].
Bankruptcy Law Section
Winter Social
The Bankruptcy Law Section is hosting a winter social event from 5–7 p.m.,
Dec. 16, at Soul and Vine, 109 Gold Ave.
SW, Albuquerque. There will be buffet
appetizers and one drink ticket available
per attendee. The event is free to section
members. No R.S.V.P. required.
Board of Bar Commissioners
Online Voting Available for
2015 Election
Voting in the 2015 election for the State
Bar of New Mexico Board of Bar Commissioners began Nov. 10 and closes at noon
Nov. 30. The First Bar Commissioner District (Bernalillo County) has a contested
election with seven candidates running
for four positions in the district. A link to
the electronic ballot and instructions was
emailed to all members in the First Bar
Commissioner District using email addresses on file with the State Bar. To provide
an email address if one is not currently on
file or to request a mailed ballot, contact
Pam Zimmer, [email protected]. The
election will close at noon on Nov. 30.
contribute to the fund. The Section urges
members of the New Mexico legal community to consider donating to this fund.
For more information, visit www.nmbar.
org > About Us > Sections > Indian Law.
Seeking Nominees for
Access to Justice Commission
The Indian Law Section will announce
the recipient of the third annual Achievement Award at its mixer from 5–7 p.m.,
Nov. 19, at Georgia’s in Santa Fe, 225
Johnson St., next to the Georgia O’Keeffee
museum. Appetizers are included. R.S.V.P.
to Heather Kleinschmidt, hkleinschmidt@
nmbar.org
The Board of Bar Commissioners will
make one appointment to the New Mexico
Access to Justice Commission for a threeyear term. Anyone who wants to serve
on the commission should send a letter
of interest and brief résumé by Nov. 30 to
Executive Director Joe Conte, State Bar of
New Mexico, PO Box 92860, Albuquerque,
NM 87199-2860; fax to 828-3765; or email
to [email protected].
Committee on Women and
the Legal Profession
2015 Justice Minzner Outstanding
Advocacy for Women Award
The Committee on Women and the
Legal Profession is seeking nominations
for the 2015 Justice Pamela B. Minzner
Outstanding Advocacy for Women
Award. Each year the Committee gives
this award to a New Mexico attorney,
male or female, who has distinguished
themselves during the prior year by
providing legal assistance to women who
are underrepresented or underserved or
by advocating for causes that will ultimately benefit and/or further the rights
of women. To make a nomination, submit
one–three letters describing the work and
accomplishments of the nominee to Zoe
Lees at [email protected] by Dec. 15.
The award ceremony will be held midJanuary of 2016. For more details about
the award and previous recipients, visit
www.nmbar.org > About Us > Committees.
Indian Law Section
Donors Needed for Bar
Preparation Scholarship Fund
Since 2006, the Indian Law Section
Bar Preparation Scholarship Fund has
assisted third-year law students who plan
to take the New Mexico Bar Exam and
express an interest in practicing Indian
Law. The Scholarship aims to alleviate
some of the costs associated with preparing for and taking the Bar Exam. The
size and number of scholarships greatly
depends on the generosity of those who
Reception and Nominations for
Achievement Award
Paralegal Division
Tribal Courts and Government CLE
The Paralegal Division invites members of the legal community to bring
a lunch and attend “Tribal Law and
Working with the Tribal Courts” (1.0 G)
presented by Tammy Lambert, government affairs director, Laguna Pueblo. The
program will be held from noon–1 p.m.,
Nov. 18, at the State Bar Center (registration fee for attorneys–$16, members
of the Paralegal Division–$10, nonmembers–$15). Registration begins at the
door at 11:45 a.m. For more information,
contact Karen Atkinson, 505-341-0110, or
Carolyn Winton, 505-888-4357. Telecast
to Farmington, Roswell and Santa Fe. For
details, visit www.nmbar.org > About Us
> Divisions > Paralegal Division > CLE
Programs.
UNM
Law Library
Hours Through Dec. 12
Building & Circulation
Monday–Thursday 8 a.m.–8 p.m.
Friday
8 a.m.–6 p.m.
Saturday
10 a.m.–6 p.m.
Sunday
Noon–8 p.m.
Reference
Monday–Friday
9 a.m.–6 p.m.
Saturday–Sunday
Closed
Closures
Thanksgiving holiday: Nov. 26–27
Other Bars
New Mexico Black Lawyers
Association
‘Section 1983 and Bivens
Litigation: An Overview’ CLE
The New Mexico Black Lawyers Association presents its annual CLE “Section
Fee Arbitration Program
This program helps to resolve fee disputes
between attorneys and their clients or
between attorneys. Call 505-797-6054 or
1-800-876-6227.
1983 and Bivens Litigation: An Overview”
(5.0 G, 1.0 EP). The program will be
8 a.m.–4:30 p.m., Nov. 20, at the State Bar
Center in Albuquerque. Tuition is only
$199. Register online at www.newmexico
blacklawyersassociation.org. Deadline to
request a refund is Nov. 6. Purchase orders
are welcome; call 505-450-1032. For more
information, email nmblacklawyers@
gmail.com.
New Mexico Criminal Defense
Lawyers Association
‘Blinded by Science’ and ‘The
Brain’ CLE Courses
The New Mexico Criminal Defense
Lawyers Association presents two CLE
courses in December. “Blinded by Science: An Update on Scientific Testimony,
Cell Phones and Experts, Plus the Ethical
Implications of Each” (4.0 G, 2.0 EP) will
be Dec. 4 at the Greater Albuquerque
Association of Realtors in Albuquerque.
“The Brain: The Client’s, The Juror’s, The
Judge’s and Yours” (3.0 G, 3.0 EP) will
be Dec. 11 at the New Mexico Farm &
Ranch Heritage Museum in Las Cruces.
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 > for Members >
Lawyers/Judges Assistance
5
Registration available at www.nmcdla.
org.
New Mexico Defense Lawyers
Association
Annual Civil Rights Seminar
The New Mexico Defense Lawyers Association presents “2015 Annual Civil Rights
Seminar “(5.5 G) from 8:30 a.m.–4:15
p.m., Dec. 4, at the Greater Albuquerque
Jewish Community Center. This seminar is
designed for the intermediate as well as advanced civil rights practitioner and adjuster.
For registration and more information visit
www.nmdla.org 505-797-6021.
Other News
Neighborhood Law Center
CLE Conference in Santa Fe
The Santa Fe Neighborhood Law Center presents the 8th annual Neighborhood
6
Law CLE Conference, “Law and Policy
for Neighborhoods” (10.0 G, 2.0 EP),
Dec. 3–4, at the Santa Fe Convention
Center. The program features Supreme
Court Justice Charles W. Daniels and
Court of Appeals Judge Linda M. Vanzi
as mid-day speakers. Early registrants
(before Nov. 27) will receive a reduced
fee of $350 (standard registration fee:
$380). For more information, schedule
and registration, visit www.sfnlc.com.
Workers’ Compensation
Administration
Destruction of Exhibits and
Depositions
In accordance with NMAC 11.4.4.9
(Q)-Forms, Filing and Hearing Procedures: Return of Records—the New
Mexico Workers’ Compensation Administration will be destroying all exhibits and
depositions filed in causes closed in 2009,
excluding causes on appeal. The exhibits
and depositions are stored at 2410 Centre
Ave SE, Albuquerque. They can be picked
up until Nov. 21. For more information,
contact WCA at 505-841-6028 or 1-800255-7965 and ask for Heather Jordan, clerk
of the court.
Accelerated Bar Bulletin
Holiday Deadlines
To be included in the Dec. 2 issue, all
notices and editorial content must be
submitted by Thursday, Nov. 19.
Submit content to [email protected].
Hearsay
Andrew Anders
A
ndrew Anders is now an associate at Keleher & McLeod, PA. He practices primarily
in the area of civil defense litigation. Anders
began working for Keleher & McLeod in
2014 as a law clerk. Before that, he was
employed as a senior engineer at Emcore
Photovoltaics. He attended the New Mexico
Institute of Mining and Technology (B.S.,
Materials Engineering), the University of
New Mexico Anderson School of Management (M.B.A.), and the University of New
Mexico School of Law. He was admitted to
the State Bar this year.
John Butrick and Chris
Solis have joined the
Law Office of George
“Dave” Giddens, PC.
Butrick joins the litigation team. He attended
the University of New
Mexico School of Law
(cum laude, 2015) and
was admitted to the
State Bar in September.
John Butrick
Chris Solis
Butrick was a legal intern for the New Mexico Department of Workforce Solutions. He
also served as a Law Clerk for the U.S. Department of the Interior,
Office of the Solicitor and New Mexico Attorney General’s office.
Solis joins the bankruptcy team. He attended Notre Dame (B.S.,
Electrical Engineering) and the University of New Mexico School
of Law (2013). He comes from the Fifth Judicial District. Solis
is a member of the State Bar and the Hispanic Bar Association.
Tomas J. Garcia
Michelle Hernandez
Tomas J. Garcia, an associate at the Modrall
Sperling law firm, was named Young Lawyer
of the Year 2015 by the New Mexico Defense
Lawyers Association at their annual meeting
held at the Hotel Albuquerque on Sept. 25.
Prior to joining Modrall Sperling, Garcia
clerked for Justice Charles W. Daniels of
the New Mexico Supreme Court, who
presented the award. Garcia’s practices in
commercial, healthcare, torts/personal
injury, and natural resources litigation. He
is currently vice chair of the State Bar Young
Lawyers Division.
Michelle Hernandez of Modrall Sperling
has been appointed to a two-year term
as regional president of the Hispanic National Bar Association for the Region XV
(New Mexico and Utah). Hernandez is a
shareholder and focuses her practice on
healthcare, product liability and personal
injury litigation. She attended the University of New Mexico (undergraduate, cum
laude) and the University of California at
Los Angeles (J.D.). Hernandez served as a
judicial law clerk to former Justice Joseph F.
Baca for the New Mexico Supreme Court.
Trent A. Howell
Trent A. Howell has joined Montgomery
& Andrews PA in the firm’s Santa Fe office. Howell has experience representing
small and large companies in employment,
business and tort litigation throughout the
state. He attended the University of Texas
(B.A., English, 1994) and the University
of Texas School of Law (1997). He is AV
Rated by Martindale-Hubbell and is listed
in Chambers & Partners: America’s Leading
Lawyers (2010-2015) and Super Lawyers
(2007–2009, 2014–2015).
Colonel Joe M. Romero, junior staff judge
advocate for the New Mexico National
Guard, was recently published in The Procurement Lawyer, a quarterly periodical of
the American Bar Association. The article,
co-authored with Brett Sander, is titled
“Vendor Vetting of Non-US Contractors
in Afghanistan.” The article focuses on
government contracting practices in Afghanistan. During 2013 and 2014, Colonel
Romero was deployed to Southwest Asia
Col. Joe M. Romero
as a Legal Advisor to Task Force 2010, U.S.
Forces—Afghanistan. Colonel Romero attended the University
of Maryland at College Park (B.A.) and the University of Notre
Dame Law School.
Andrew G. Schultz was elected president of
the Board of Ethics and Campaign Practices
of the City of Albuquerque. Schultz is a
director at the Rodey Law Firm where he
serves as head of the firm’s complex and
commercial litigation practice group. He
has a special interest in class action and civil
rights litigation, along with other complex
procedural and appellate work.
Andrew G. Schultz
Abigail M. Yates
Abigail M. Yates has joined the Rodey Law
Firm as an associate in the Albuquerque
office. She practices in the litigation department, primarily with the complex and commercial litigation and the products and general liability practice groups. Yates attended
the University of New Mexico School of Law
(2015, magna cum laude). During law school,
she served as manuscript editor for the New
Mexico Law Review. Upon graduation, Yates
received a Dean’s Award for Significant
Contribution to the Law School Community.
7
Hearsay
Bardacke and Allison
Santa Fe attorneys Paul Bardacke and Ben
Allison have established Bardacke Allison
LLP. The firm focuses on commercial litigation, intellectual property and mediations.
Joining them is Breanna Houghton, a 2013
graduate of the University of Notre Dame
Law School. Bardacke and Allison were
recently named litigation stars for 2016 in
Benchmark Litigation, and in the current
edition of Best Lawyers in America, in which
Bardacke was again named mediator of the
year for 2016.
Modrall, Sperling, Roehl, Harris & Sisk, PA
Best Lawyers in America: Lawyers of the Year
Arthur D. Melendres (education law), Christopher P. Muirhead
(municipal law, public finance law), Douglas R. Vadnais (bankruptcy and creditor rights), Earl E. DeBrine (oil and gas law),
George R. McFall (employment law: management), Jennifer A.
Noya (employment law: individuals), John R. Cooney (energy
law), Maria O’Brien (water law), Stuart R. Butzier (natural
resources law) and Walter E. Stern III (education law).
Peacock Myers, PC
Best Lawyers in America:
Deborah Peacock, Jeffrey Myers and Janeen Vilven-Doggett
Best Lawyers in America Lawyers of the Year:
Deborah Peacock (patent litigation) and Jeffrey Myers (intellectual property law litigation)
Pregenzer, Baysinger, Wideman & Sale, PC
Best Lawyers in America
Nell Graham Sale (elder law)
The New Mexico Defense Lawyers Association held its annual
awards luncheon on Sept. 25 at Hotel Andaluz. Mark J. Riley of
Riley, Shane & Keller, PA, was honored as the 2015 Outstanding
Civil Defense Lawyer of the Year. Tomas J. Garcia of Modrall
Sperling was honored as the 2015 Young Lawyer of the Year.
NMDLA celebrated its 30th anniversary by recognizing and
thanking all of its past-presidents. Those present included, from
left to right, Lee M. Rogers Jr. (2001), Paul S. Grand (2002),
Mark J. Riley (1997), William P. Gralow (1987), Thomas A.
Sandenaw Jr. (1988), Eric Sedillo Jeffries (1991), P. Scott Eaton
(2000), Daniel J. O’Brien (1999), Sean E. Garrett (2015), Paul
E. Houston (2005), S. Carolyn Ramos (2009), Bryan C. Garcia
(2010), Hon. Nancy J. Franchini (2011–2012), Michelle A.
Hernandez (2012) and Richard M. Padilla (2014).
Atkinson & Kelsey, PA
Best Lawyers in America: Best Law Firms
Lewis Roca Rothgerber LLP
National Tier: commercial litigation, litigation: banking and
finance and litigation: real estate
Albuquerque (first tier): litigation: real estate
Rodey, Dickason, Sloan, Akin & Robb, P A
Albuquerque (first tier rankings): administrative/regulatory
law, appellate practice, arbitration, banking and finance law,
commercial litigation, corporate law, eminent domain and
condemnation law, employment law: management, government relations practice, health care law, insurance law, labor
law: management, land use and zoning law, legal malpractice
law: defendants, leveraged buyouts and private equity law,
litigation: banking and finance, litigation: first amendment,
litigation: labor and employment, litigation: land use and zoning, litigation: patent, litigation: real estate, litigation: tax, mass
tort litigation/class actions: defendants, mediation, medical
malpractice law: defendants, mergers and acquisitions law,
personal injury litigation: defendants, product liability litigation: defendants, professional malpractice law: defendants,
public finance law, real estate law, securities/capital markets
law, tax law and trusts and estates law
Santa Fe (first tier rankings): administrative/regulatory law,
arbitration, corporate law, energy law, financial services regulation law, mediation, mining law, Native American law, natural
resources law, personal injury litigation: defendants and real
estate law.
In Memoriam
Donald D. Becker
8
Donald D. Becker, loyal and dedicated
husband, father and friend, died on Oct. 8.
He was 68. Becker was known for his professionalism and ability to be open-minded,
devoted and considerate of others. He based
his life aspirations on his favorite poem “The
Desiderata.” His career as an attorney gave
him meaning and purpose in life through
helping others overcome the hardships of
life. Becker’s dedication in the advancement
of law could be realized in his volunteering
with numerous legal organizations. He enjoyed teaching law
management as an adjunct professor at the University of New
Mexico School of Law. Becker is survived by his wife, Jo Ann;
son, Jason; grandchildren, Kaitlyn, Garrick, Dadge and Paige;
and parents, Robert and Geraldine. He leaves behind many
cherished aunts, uncles, nieces, nephews, cousins and friends.
He was preceded in death by his brother, Richard; son, Douglas;
and grandson, Camron.
Editor’s Note: The contents of Hearsay and In Memoriam are submitted by members or derived from news clippings. Send announcements to [email protected].
Second Annual
Senior Lawyers Division
Attorney Memorial
Scholarship Presentation
and Reception
Thursday, Nov. 19 • 5-7 p.m.
State Bar Center
Three* $2,500 scholarships will be awarded to UNM School of
Law third-year students, in memory of attorneys who have died
in the past 12 months. Families of the deceased attorneys will
be recognized. The Senior Lawyers Division invites all State Bar
members to attend. UNM School of Law Deans, faculty, staff
and students are encouraged to save the date.
R.S.V.P. to Heather Kleinschmidt, [email protected].
SENIOR LAWYERS DIVISION
*A third scholarship has been made available due to the generosity of the family of J.W. Neal
and support from Estelle Read, wife of Stan Read.
9
Report by Disciplinary Counsel
Disciplinary Quarterly Report
Final Decisions
Final Decisions of the NM Supreme Court.................................. 5
Matter of Michael M. Carrasco, a disbarred attorney (Disciplinary No. 07-2001-424) The New Mexico Supreme Court entered
an order permanently disbarring Respondent from the practice
of law. This matter was brought before the court on a motion
for order to show cause and to be held in contempt of court
for violating a previous order issued by the Court. Respondent
shall not be permitted to meet with clients or collect money
from clients even if employed by a lawyer. Respondent was
further order to make restitution payments to former clients
and provide all bank records to the disciplinary board.
Matter of John Michael Bowlin, Esq. (Disciplinary No. 01-2015714) The New Mexico Supreme Court entered an order suspending Respondent from the practice of law for eighteen (18)
months which was deferred upon certain terms and conditions
contained in a conditional agreement. This matter was brought
before the court on a trust account violation. Respondent was
ordered to observe and comply with the Rules of Professional
Conduct, have trust and operating accounts audited by an
auditor approved by the Disciplinary Board, attend a CLE
specifically on trust accounts, meet with a mentor selected by
the Disciplinary Board to help maintain trust accounts, and
was ordered to pay costs to the Disciplinary Board.
Matter of Brian L. Shoemaker, Esq. (Disciplinary No. 022015-715) The New Mexico Supreme Court entered an order
suspending Respondent from the practice of law for eighteen
(18) months which was deferred upon certain terms and
conditions contained in a conditional agreement. This matter was brought before the court on a trust account violation.
Respondent was ordered to observe and comply with the Rules
of Professional Conduct, have trust and operating accounts
audited by an auditor approved by the Disciplinary Board,
attend a CLE specifically on trust accounts, and pay costs to
the disciplinary board.
Matter of Eric D. Dixon, Esq. (Disciplinary No. 10-2011-634)
The New Mexico Supreme Court entered a public censure
against Respondent which was published in the State Bar
Bulletin, Volume 54 - Number 35, on September 2, 2015.
Matter of Troy W. Prichard (Disciplinary No. 07-2014-695)
The New Mexico Supreme Court entered an order granting
the petition to summarily suspend Respondent but suspended
the order of suspension thereby allowing Respondent to
practice under certain conditions which include requiring that
Respondent practice only under the supervision of another
attorney or within the Law Offices of the Public Defender, and
prohibiting Respondent from having control over client trust
funds.
Summary Suspensions
Total number of attorneys summarily suspended....................... 1
Administrative Suspensions
Total number of attorneys administratively suspended.............. 1
Matter of George P. Marquez, Esq. (Disciplinary No. 07-2014694) New Mexico Supreme Court entered an order adminis10
Reporting Period: July 1–Sept. 30, 2015
tratively suspending Respondent from the practice of law for
the failure to cooperate with Disciplinary Counsel.
Disability Suspensions
Total number of attorneys placed on disability suspension....... 0
Charges Filed
Charges were filed against an attorney, who is not licensed in
New Mexico, for allegations of communicating ex parte with a
Judge in a pending proceeding and engaging in conduct that is
prejudicial to the administration of justice.
Charges were filed against an attorney for allegations of failing
to provide competent representation to a client; representing
one client who is directly adverse to another client; representing clients when the representation is materially limited by the
lawyer’s responsibilities to the other client; using information
relating to the representation of a client to the disadvantage of the
client without informed consent; bringing a proceeding with no
basis in law that is frivolous and has no good faith for extension,
modification or reversal of existing law; and violating the Rules
of Professional Conduct.
to promptly disburse funds that the client was entitled to receive;
failing to maintain complete records of all client funds; making
cash withdrawals from the IOLTA account; and failing to make
reasonable efforts to ensure that the firm had in effect measures
that gave reasonable assurance of compliance with Rule 17-204.
to promptly disburse funds that the client was entitled to receive;
failing to maintain complete records of all client funds; making
cash withdrawals from the IOLTA account; and failing to make
reasonable efforts to ensure that the firm had in effect measures
that gave reasonable assurance of compliance with Rule 17-204.
Charges were filed against an attorney for allegations of failing to
hold property of clients or third persons separate from the lawyer’s
own property and failing to keep complete records.
Petitions for Reciprocal Discipline Filed
Petitions for reciprocal discipline filed.......................................... 0
Petitions for Reinstatement Filed
Petitions for reinstatement filed.....................................................1
Jane E. Abrams, Esq., n.k.a. Jane E. Granier, Esq. (Disciplinary
No. 02-2013-663) Respondent petitioned for reinstatement
from a suspension order. This matter is currently before the
Disciplinary Board.
Formal Reprimands
Total number of attorneys formally reprimanded....................... 2
Matter of Yvonne K. Quintana, Esq. (Disciplinary No. 11-2014709) a Formal Reprimand was issued at the Disciplinary Board
meeting of July 17, 2015, for the violation of Rule 16-101,
failing to provide competent representation to a client; Rule
16-103, failing to represent your client diligently; Rule 16-302,
failing to expedite litigation; and engaging in conduct that
was prejudicial to the administration of justice. The Formal
Reprimand was published in the State Bar Bulletin issued
August 12, 2015.
Letters of Caution
Total number of attorneys cautioned..........................................10
Matter of Thomas A. Pfarr, Esq. (Disciplinary No. 12-2014710) a Formal Reprimand was issued at the Disciplinary
Board meeting of July 17, 2015, for the violation of Rule
16-101, failing to recognize and fulfill the duties to a statutory Beneficiary; and Rule 16-107(A), failing to resolve the
conflict with respect to the duties to the statutory beneficiary,
failing to determine whether the statutory beneficiary had
a legal guardian, and failing to take action according to the
mandates of Leyba and Spencer. The Formal Reprimand
was published in the State Bar Bulletin issued August 12,
2015.
Attorneys were cautioned for the following conduct: (1) general
neglect (two letters of caution issued); (2) IOLTA overdraft (four
letters of caution issued); (3) failure to communicate; (4) general
misrepresentation to the Court; (5) failure to comply with Court
order; and (6) general incompetence.
Informal Admonitions
Total number of attorneys admonished........................................1
An attorney was informally admonished for failing to provide
competent representation prematurely and arguably not in the client’s long term best interest although the client asked Respondent
to act quickly but in doing so Respondent acted in violation of
Rule 16-101of the Rules of Professional Conduct.
Complaints Received
Allegations
No. of Complaints
Trust Account Violations........................................................7
Conflict of Interest...................................................................0
Neglect and/or Incompetence..............................................80
Misrepresentation or Fraud..................................................15
Relationship with Client or Court.......................................19
Fees.............................................................................................5
Improper Communications....................................................2
Criminal Activity.....................................................................0
Personal Behavior..................................................................15
Other..........................................................................................3
Total number of complaints received................................146
11
Legal Education
November
18
Default and Remedies Provisions in
Commercial Leases
1.0 G
Live Seminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
18
Choice of Entity for Nonprofits &
Obtaining Tax Exempt Status
1.0 G
National Teleseminar
505-797-6020
www.nmbar.org
19
The New Lawyer—Rethinking Legal
Services in the 21st Century
4.5 G, 1.5 EP
Live Seminar and Webcast
505-797-6020
www.nmbar.org
19
Preferred Returns, Preferences
& Anti-Dilution Mechanisms in
Business & Real Estate
1.0 G
505-797-6020
www.nmbar.org
20
Ethics, Remote Networks, The
Cloud, Smart Phones and Working
From Anywhere
1.0 G
505-797-6020
www.nmbar.org
24
Employment and Labor Law
Institute
5.0 G, 1.0 EP
Video Replay
505-797-6020
www.nmbar.org
24
Representing Technology Startups in New Mexico: Navigating the
Intellectual Property and Business
Law Challenges
6.5 G, 1.0 EP
Video Replay
505-797-6020
www.nmbar.org
24
Legal Writing—From Fiction to
Fact (Full Day)
4.0 G, 2.0 EP
Video Replay
505-797-6020
www.nmbar.org
24
2015 Ethicspalooza: All Those Fees
1.0 EP
Video Replay
505-797-6020
www.nmbar.org
24
Ethicspalooza: Proper Trust
Accounting
1.0 EP
Video Replay
505-797-6020
www.nmbar.org
30
Estate Planning for Digital Assets
1.0 G
505-797-6020
www.nmbar.org
December
1
Reciprocity in New Mexico
4.5 G, 2.5 EP
Live Seminar
505-797-6020
www.nmbar.org
3
2015 Real Property Institute
5.0 G, 1.0 EP
505-797-6020
www.nmbar.org
1
Ethics in Claims and Settlements
1.0 EP
505-797-6020
www.nmbar.org
3
Tax Traps in Business Formations
1.0 G
505-797-6020
www.nmbar.org
2
3–4
Drafting Trust Distribution
Clauses: Health, Education &
Maintenance
1.0 G
505-797-6020
www.nmbar.org
12
Santa Fe Neighborhood Law Center
Law And Policy For Neighborhoods
Conference
10.0 G, 2.0 EP
Santa Fe Convention Center
Neighborhood Law Center
www.sfnlc.com
4
The Trial Variety: Juries, Experts
and Litigation
6.0 G
505-797-6020
www.nmbar.org
4
2015 Annual Civil Rights Seminar
5.5 G
Albuquerque
N.M. Defense Lawyers Association
505-797-6021
www.nmdla.org
8
2015 ‘s Best Law Office Technology,
Software and Tools-Improve Client
Service, Increase Speed and Lower
Your Costs
4.8 G, 1.2 EP
Video Replay
505-797-6020
www.nmbar.org
Legal Education
www.nmbar.org
December
8
Beyond Sticks and Stones (2015
Annual Meeting)
1.5 EP
Video Replay
505-797-6020
www.nmbar.org
8
Judicial Panel Discussion (2015
Annual Meeting)
1.0 G
Video Replay
505-797-6020
www.nmbar.org
8
Invasion of the Drones: IP-Privacy,
Policies, Profits (2015 Annual
Meeting)
1.5 G
Video Replay
505-797-6020
www.nmbar.org
8
Criminal Procedure Update (2015
Annual Meeting)
1.2 G
Video Replay
505-797-6020
www.nmbar.org
8–9
Planning with Single Member
LLCs, Parts 1–2
2.0 G
505-797-6020
www.nmbar.org
10
Trial Know-How Courtroom Skills
from A to Z
7.0 G
505-797-6020
www.nmbar.org
10
Estate & Tax Planning for Estates
Under the $10 Million Exemption
Amount
1.0 G
505-797-6020
www.nmbar.org
11
Current Immigration Issues for the
Criminal Defense Attorney
5.0 G, 2.0 EP
505-797-6020
www.nmbar.org
15
Get It Right—Use the Official Laws
2.0 EP
Santa Fe
Albuquerque
505-827-4821
www.nmcompcomm.us
15–16 Drafting and Reviewing
Commercial Leases, Parts 1–2
2.0 G
505-797-6020
www.nmbar.org
16
Law Practice Succession—A Little
Thought Now, A Lot Less Panic
Later
2.0 EP
505-797-6020
www.nmbar.org
17
Talking ‘Bout My Generation:
Professional Responsibility
Dilemmas Among Generations
3.0 EP
505-797-6020
www.nmbar.org
17
What NASCAR, Jay-Z and The
Jersey Shore Teach About Attorney
Ethics
3.0 G
505-797-6020
www.nmbar.org
17–18 Ethics & Conflicts with Clients,
Parts 1–2
2.0 EP
505-797-6020
www.nmbar.org
18
Navigating New Mexico Public
Land Issues
5.5 G, 1.0 EP
505-797-6020
www.nmbar.org
21
Drafting Stock Purchase
Agreements
1.0 G
505-797-6020
www.nmbar.org
23
The Cybersleuth’s Guide to the
Internet
5.0 G, 1.0 EP
505-797-6020
www.nmbar.org
13
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 October 16, 2015
Petitions for Writ of Certiorari Filed and Pending:
No. 35,562
No. 33,979
No. 35,559
No. 35,558
No. 35,555
No. 35,554
No. 35,552
No. 35,550
No. 35,546
No. 35,545
No. 35,544
No. 35,542
No. 35,540
No. 35,539
No. 35,537
No. 35,538
No. 35,535
No. 35,532
No. 35,526
No. 35,525
No. 35,523
No. 35,522
No. 35,520
No. 35,519
No. 35,518
No. 35,515
No. 35,506
No. 35,495
No. 35,480
No. 35,479
No. 35,474
No. 35,422
No. 35,466
No. 35,454
No. 35,440
No. 35,422
No. 35,416
No. 35,415
No. 35,411
No. 35,399
No. 35,374
No. 35,375
No. 35,372
No. 35,370
No. 35,369
No. 35,368
No. 35,353
No. 35,335
No. 35,341
14
Date Petition Filed
Scott v. New
COA 34,556 10/16/15
State v. Suskiewich
COA 33,979 10/16/15
State v. Shelby
COA 34,682 10/15/15
State v. Hernandez
COA 33,525 10/13/15
Flores-Soto v. Wrigley
12-501 10/09/15
Rivers v. Heredia
12-501 10/09/15
Spurlock v. N.M. Board of Examiners
for Architects
COA 34,833 10/09/15
State v. Ben
COA 33,921 10/07/15
State v. Lefthand
COA 33,396 10/05/15
State v. Lemanski
COA 33,846 10/05/15
State v. Trujeque
COA 34,519 10/05/15
City of Roswell v. Marin COA 34,286 10/02/15
Fausnaught v. State
12-501 10/02/15
State v. Herrera
COA 33,255 10/02/15
State v, Reyes
COA 34,700 10/02/15
State v. Gallegos
COA 34,689 10/02/15
State v. Herrera COA 33,078/33,255 09/29/15
Woody Investments v.
Sovereign Eagle
COA 32,830 09/29/15
State v. Mitchell
COA 34,573 09/24/15
State v. Ashley
COA 32,974 09/23/15
McCoy v. Horton
12-501 09/23/15
Denham v. State
12-501 09/21/15
Deutsche Bank v. Huerta COA 34,337 09/21/15
State v. York
COA 33,462 09/21/15
State v. Yanke
COA 34,474 09/21/15
Saenz v.
Ranack Constructors
COA 32,373 09/17/15
Alonso v. Hatch
12-501 08/31/15
Stengel v. Roark
12-501 08/21/15
Ramirez v. Hatch
12-501 08/20/15
Johnson v. Hatch
12-501 08/17/15
State v. Ross
COA 33,966 08/17/15
State v. Johnson
12-501 08/10/15
Garcia v. Wrigley
12-501 08/06/15
Alley v. State
12-501 07/29/15
Gonzales v. Franco
12-501 07/22/15
State v. Johnson
12-501 07/17/15
State v. Heredia
COA 32,937 07/15/15
State v. McClain
12-501 07/15/15
Tayler v. State
12-501 07/10/15
Lopez v. State
12-501 07/09/15
Loughborough v. Garcia
12-501 06/23/15
Martinez v. State 12-501 06/22/15
Martinez v. State
12-501 06/22/15
Chavez v. Hatch
12-501 06/15/15
Serna v. State
12-501 06/15/15
Griego v. Horton
12-501 06/15/15
Collins v. Garrett
COA 34,368 06/12/15
Chavez v. Hatch
12-501 06/03/15
Martin v. State
12-501 05/28/15
No. 35,371
No. 35,271
No. 35,266
No. 35,261
No. 35,217
No. 35,159
No. 35,106
No. 35,097
No. 35,099
No. 35,068
No. 34,937
No. 34,932
No. 34,881
No. 34,907
No. 34,680
No. 34,777
No. 34,790
No. 34,775
No. 34,706
No. 34,563
No. 34,303
No. 34,067
No. 33,868
No. 33,819
No. 33,867
No. 33,539
No. 33,630
Pierce v. Nance
12-501 05/22/15
Cunningham v. State
12-501 05/06/15
Guy v. N.M. Dept. of
Corrections
12-50104/30/15
Trujillo v. Hickson
12-501 04/23/15
Hernandez v. Horton
12-501 04/03/15
Jacobs v. Nance
12-501 03/12/15
Salomon v. Franco
12-501 02/04/15
Marrah v. Swisstack
12-501 01/26/15
Keller v. Horton
12-501 12/11/14
Jessen v. Franco
12-501 11/25/14
Pittman v.
N.M. Corrections Dept.
12-501 10/20/14
Gonzales v. Sanchez
12-501 10/16/14
Paz v. Horton
12-501 10/08/14
Cantone v. Franco
12-501 09/11/14
Wing v. Janecka
12-501 07/14/14
State v. Dorais
COA 32,235 07/02/14
Venie v. Velasquz
COA 33,427 06/27/14
State v. Merhege
COA 32,461 06/19/14
Camacho v. Sanchez
12-501 05/13/14
Benavidez v. State
12-501 02/25/14
Gutierrez v. State
12-501 07/30/13
Gutierrez v. Williams
12-501 03/14/13
Burdex v. Bravo
12-501 11/28/12
Chavez v. State
12-501 10/29/12
Roche v. Janecka
12-501 09/28/12
Contreras v. State
12-501 07/12/12
Utley v. State
12-501 06/07/12
Certiorari Granted but Not Yet Submitted to the Court:
(Parties preparing briefs) No. 33,725 State v. Pasillas
No. 33,877 State v. Alvarez
No. 33,930
No. 34,363
No. 34,274
No. 34,443
No. 34,522
No. 34,582
No. 34,694
No. 34,669
No. 34,650
No. 34,784
No. 34,728
No. 34,812
No. 34,830
No. 34,929
No. 35,063
No. 35,016
No. 35,130
No. 35,101
Date Writ Issued
COA 31,513 09/14/12
COA 31,987 12/06/12
State v. Rodriguez
COA 30,938
Pielhau v. State Farm
COA 31,899
State v. Nolen
12-501
Aragon v. State
12-501
Hobson v. Hatch
12-501
State v. Sanchez
COA 32,862
State v. Salazar
COA 33,232
Hart v. Otero County Prison 12-501
Scott v. Morales
COA 32,475
Silva v. Lovelace Health
Systems, Inc.
COA 31,723
Martinez v. Bravo
12-501
Ruiz v. Stewart
12-501
State v. Mier
COA 33,493
Freeman v. Love
COA 32,542
State v. Carroll
COA 32,909
State v. Baca
COA 33,626
Progressive Ins. v. Vigil COA 32,171
Dalton v. Santander
COA 33,136
01/18/13
11/15/13
11/20/13
02/14/14
03/28/14
04/11/14
06/06/14
06/06/14
06/06/14
08/01/14
10/10/14
10/10/14
10/24/14
12/19/14
01/26/15
01/26/15
03/23/15
03/23/15
Writs of Certiorari
No. 35,148
No. 35,198
No. 35,183
No. 35,145
No. 35,121
No. 35,116
No. 34,949
No. 35,298
No. 35,297
No. 35,296
No. 35,286
No. 35,255
No. 35,249
No. 35,248
No. 35,214
No. 35,213
No. 35,279
No. 35,289
No. 35,290
No. 35,349
No. 35,302
No. 35,318
No. 35,386
No. 35,278
No. 35,398
No. 35,427
No. 35,446
No. 35,451
No. 35,438
No. 35,426
No. 35,499
No. 35,456
No. 35,437
No. 35,395
El Castillo Retirement Residences v.
Martinez
COA 31,701 04/03/15
Noice v. BNSF
COA 31,935 05/11/15
State v. Tapia
COA 32,934 05/11/15
State v. Benally
COA 31,972 05/11/15
State v. Chakerian
COA 32,872 05/11/15
State v. Martinez
COA 32,516 05/11/15
State v. Chacon
COA 33,748 05/11/15
State v. Holt
COA 33,090 06/19/15
Montano v. Frezza
COA 32,403 06/19/15
State v. Tsosie
COA 34,351 06/19/15
Flores v. Herrera COA 32,693/33,413 06/19/15
State v. Tufts
COA 33,419 06/19/15
Kipnis v. Jusbasche
COA 33,821 06/19/15
AFSCME Council 18 v. Bernalillo
County Comm.
COA 33,706 06/19/15
Montano v. Frezza
COA 32,403 06/19/15
Hilgendorf v. Chen
COA 33056 06/19/15
Gila Resource v. N.M. Water Quality Control
Comm. COA 33,238/33,237/33,245 07/13/15
NMAG v. N.M. Water Quality Control
Comm. COA 33,238/33,237/33,245 07/13/15
Olson v. N.M. Water Quality Control
Comm. COA 33,238/33,237/33,245 07/13/15
Phillips v. N.M. Taxation and
Revenue Dept.
COA 33,586 07/17/15
Cahn v. Berryman
COA 33,087 07/17/15
State v. Dunn
COA 34,273 08/07/15
State v. Cordova
COA 32,820 08/07/15
Smith v. Frawner
12-501 08/26/15
Armenta v.
A.S. Homer, Inc.
COA 33,813 08/26/15
State v.
Mercer-Smith
COA 31,941/28,294 08/26/15
State Engineer v.
Diamond K Bar Ranch COA 34,103 08/26/15
State v. Garcia
COA 33,249 08/26/15
Rodriguez v.
Brand West Dairy COA 33,104/33,675 08/31/15
Rodriguez v.
Brand West Dairy COA 33,675/33,104 08/31/15
Romero v.
Ladlow Transit Services COA 33,032 09/25/15
Haynes v. Presbyterian
Healthcare Services
COA 34,489 09/25/15
State v. Tafoya
COA 34,218 09/25/15
State v. Bailey
COA 32,521 09/25/15
Certiorari Granted and Submitted to the Court:
(Submission Date = date of oral
argument or briefs-only submission)
Submission Date
No. 33,969 Safeway, Inc. v.
Rooter 2000 Plumbing COA 30,196 08/28/13
No. 33,884 Acosta v. Shell Western Exploration
and Production, Inc.
COA 29,502 10/28/13
No. 34,146
No. 34,093
No. 34,287
No. 34,546
No. 34,613
No. 34,548
No. 34,549
No. 34,798
No. 34,637
No. 34,630
No. 34,789
No. 34,668
No. 34,974
No. 34,997
No. 34,993
No. 34,726
No. 34,826
No. 34,866
No. 35,049
No. 35,035
No. 35,478
No. 34,946
No. 34,945
Madrid v.
Brinker Restaurant
COA 31,244
Cordova v. Cline
COA 30,546
Hamaatsa v.
Pueblo of San Felipe
COA 31,297
N.M. Dept. Workforce Solutions v.
Garduno
COA 32,026
Ramirez v. State
COA 31,820
State v. Davis
COA 28,219
State v. Nichols
COA 30,783
State v. Maestas
COA 31,666
State v. Serros
COA 31,975
State v. Ochoa
COA 31,243
Tran v. Bennett
COA 32,677
State v. Vigil
COA 32,166
Moses v. Skandera
COA 33,002
T.H. McElvain Oil & Gas v.
Benson
COA 32,666
T.H. McElvain Oil & Gas v.
Benson
COA 32,666
Deutsche Bank v.
Johnston
COA 31,503
State v. Trammel
COA 31,097
State v. Yazzie
COA 32,476
State v. Surratt
COA 32,881
State v. Stephenson
COA 31,273
Morris v. Brandenburg
COA 33,630
State v. Kuykendall
COA 32,612
State v. Kuykendall
COA 32,612
12/09/13
01/15/14
03/26/14
08/13/14
12/17/14
01/14/15
02/25/15
03/25/15
04/13/15
04/13/15
04/13/15
08/10/15
08/12/15
08/24/15
08/24/15
08/24/15
08/26/15
08/26/15
10/13/15
10/15/15
10/26/15
11/12/15
11/12/15
Opinion on Writ of Certiorari:
No. 34,995
State v. Deangelo M.
Date Opinion Filed
COA 31,413 10/15/15
Writ of Certiorari Quashed:
No. 33,898
Date Order Filed
Bargman v. Skilled Healthcare
Group, Inc.
COA 31,088 10/15/15
Petition for Writ of Certiorari Denied:
No. 35,509
No. 35,269
No. 35,517
No. 35,513
No. 35,505
No. 35,504
No. 35,262
No. 35,260
Bank of New York v.
Borrego
Peterson v. Ortiz
State v. Lopez
State v. Wyatt B.
Wild Horse Observers v.
N.M. Livestock Board
Wild Horse Observers v.
N.M. Livestock Board
Sena v. Board of Finance
Duran v. Frawner
Date Order Filed
COA 33,988
12-501
COA 34,166
COA 33,297
10/16/15
10/15/15
10/13/15
10/13/15
COA 34,097 10/13/15
COA 34,097 10/13/15
12-501 10/13/15
12-501 10/13/15
Bar Bulletin - November 18, 2015 - Volume 54, No. 46 15
Opinions
As Updated by the Clerk of the New Mexico Court of Appeals
Mark Reynolds, Chief Clerk New Mexico Court of Appeals
PO Box 2008 • Santa Fe, NM 87504-2008 • 505-827-4925
Published Opinions
Effective November 6, 2015
No. 32824 12th Jud Dist Lincoln CV-09-275, BAC HOME LOANS v S SMITH (reverse and remand)
11/04/2015
Unublished Opinions
No. 34821 1st Jud Dist Santa Fe CV-10-29, A FIRSTENBERG v R LEITH (dismiss)
11/02/2015
No. 33440 11th Jud Dist San Juan CV-12-1195-1, TAL REALTY v SAN ANGELO (affirm)
11/02/2015
No. 34795 5th Jud Dist Eddy JQ-13-28, CYFD v ERNIE O (affirm in part and remand)
11/02/2015
No. 34390 2nd Jud Dist Bernalillo LR-13-13, STATE v M BACA (affirm)
11/03/2015
No. 34355 2nd Jud Dist Bernalillo CR-07-3296, STATE v E GARDUNO (affirm)
11/03/2015
No. 34555 2nd Jud Dist Bernalillo PQ-14-168, IN THE MATTER OF SOFIA Q (affirm)
11/03/2015
No. 34265 3rd Jud Dist Dona Ana CR-03-126, STATE v F COSTELON (affirm)
11/04/2015
No. 34565 12th Jud Dist Otero CR-13-544, STATE v J VENEGAS (affirm in part, reverse in part and remand)
11/04/2015
Slip Opinions for Published Opinions may be read on the Court’s website:
http://coa.nmcourts.gov/documents/index.htm
16
Clerk’s Certificates
From the Clerk of the New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Dated Oct. 30, 2015
Clerk’s Certificate
of Address and/or
Telephone Changes
John Milton Black
Schiffer Odom Hicks
& Johnson PLLC
700 Louisiana Street,
Suite 2650
Houston, TX 77002
713-357-5150
713-357-5160 (fax)
[email protected]
Evan C. Blackstone
U.S. Department of the
Interior
Office of the Solicitor,
Southwest Region
505 Marquette Avenue NW,
Suite 1800
Albuquerque, NM 87102
505-248-5606
505-248-5623 (fax)
[email protected]
Dawn Chavez Branch
715 Marquette Avenue NW
505-764-9710
505-764-9722 (fax)
[email protected]
Dominique Cartron
6020 Academy Road NE,
Suite 100
505-822-9400
[email protected]
Joel Cruz-Esparza
Cruz-Esparza Law Firm, LLC
201 Third Street NW, Suite 500
505-944-9060
505-944-9091 (fax)
[email protected]
Kendrick Winsor Dane
Dane Law Firm, PC
1005 Marquette Avenue NW
505-340-0133
[email protected]
Verlin Hughes Deerinwater
6200 Wilson Blvd., Apt. 419
Falls Church, VA 22044
703-244-7102
[email protected]
Richard Brooks Dulany Jr.
Law Office of Richard B.
Dulany, Jr.
PO Box 782524
San Antonio, TX 78278
210-373-2303
210-444-9070 (fax)
[email protected]
Michael Hoeferkamp
Michael D. Hoeferkamp PC
8205 Spain Road NE, Suite 201
505-503-6657
[email protected]
Peter James Horan
Frazier Law Office
1110 Pennsylvania Street NE,
Suite C
505-830-6563
505-288-3448 (fax)
peter.boknowsdivorce@gmail.
com
Georgene Louis
Isleta Gaming Regulatory
Agenty
11000 Broadway SE
505-244-8139
[email protected]
Lisa Tourek Mack
3100 Utah Street NE
505-362-6193
[email protected]
James Walton Mitchell III
Gauntt Koen Binney Woodall
& Kidd, LLP
1400 Woodloch Forest Drive,
Suite 575
The Woodlands, TX 77380
281-367-6555
281-367-3705 (fax)
[email protected]
Josett Daisy Monette
New Mexico Legal Aid, Inc.
PO Box 817
Bernalillo, NM 87004
505-867-3391
505-552-3004 (fax)
[email protected]
Jose A. Howard-Gonzalez
Kemp Smith LLP
221 N. Kansas, Suite 1700
El Paso, TX 79901
915-533-4424
915-546-5360 (fax)
[email protected]
Mariel Nanasi
New Energy Economy
343 E. Alameda Street
Santa Fe, NM 87501
505-989-7262
mariel@
seedsbeneaththesnow.com
Joann Keleher
6016 McLeod Road NE
505-363-8208
[email protected]
Michael T. Newell
Newell Law Firm, LLC
10 W. Adams Avenue, Suite E
Lovington, NM 88260
575-739-6395
855-494-0059 (fax)
[email protected]
Taylor Lieuwen
New Mexico Divorce and
Custody Law LLC
2727 San Pedro NE, Suite 114
505-881-2566
[email protected]
Brendan O’Reilly
Law Office of
Mel B. O’Reilly LLC
817 La Veta Drive NE
505-255-1597
[email protected]
Rose Osborne
Law Offices of the Public
Defender
505 Marquette Avenue NW,
Suite 120
505-369-3575
505-796-4612 (fax)
[email protected]
Lily C. Richardson
3602 E. Campbell Avenue
Phoenix, AZ 85016
602-350-7160
602-288-3134 (fax)
[email protected]
Stephen C. Ross
Basham & Basham, PC
2205 Miguel Chavez Road,
Suite A
Santa Fe, NM 87505
505-988-4575
505-992-6170 (fax)
[email protected]
Emma D. B. Weber
159 Mesa Verde Road
Jemez Springs, NM 87025
505-489-3405
[email protected]
Jacob A. Garrison
The Garrison Law Firm, LLC
10600 Menaul Blvd. NE,
Suite C
505-417-4799
505-214-5764 (fax)
[email protected]
Jocelyn Amelia Garrison
906 Peach Circle
Tularosa, NM 88352
[email protected]
Christina Bartosh Goodrow
Christina Bartosh Goodrow,
Attorney at Law, LLC
3949 Corrales Road NW,
Suite 205
Corrales, NM 87048
505-239-9228
505-899-4060 (fax)
[email protected]
17
Clerk’s Certificates
Carol Graebner
2429 Bissonnet Street #314
Houston, TX 77005
[email protected]
Stephanie Yvette Lopez
Law Office of S. Lopez, LLC
PO Box 68028
505-681-2426
[email protected]
Mark A. Smith
PO Box 2283
Tijeras, NM 87059
[email protected]
Charles T. Stoll
2546 Koa Avenue
Morro Bay, CA 93442
Kay Ann Connelly Tyssee
1535 Teramo Street
Henderson, NV 89052
[email protected]
of Change to Inactive
Status
Effective October 16, 2015:
Brian Edward Harris
224 Las Mananitas Street
Santa Fe, NM 87501
505-819-7648
[email protected]
Sharon B. Hawk
PO Box 1338
Placitas, NM 87043
Marin J. Kowal
6601 Tennyson Street NE,
Apt. 7108
757-739-6157
[email protected]
18
Jack Wolter Withem
8100 Barstow Street NE
#24204
[email protected]
Walter Kenneth Martinez Jr.
Walter K. Martinez
Law Office
PO Box 730
310 W. High Street
Grants, NM 87020
505-287-8801
505-287-4877 (fax)
[email protected]
Pilar L. Murray
Murray Law Firm
PO Box 717
El Prado, NM 87529
575-779-7054
[email protected]
of Admission
On October 27, 2015:
Tammy L. Hawley
PO Box 1868
2116 Westridge Road (88220)
Carlsbad, NM 88221
325-650-7371
[email protected]
William A. Hilsman
2300 E. Cary Street #223
Richmond, VA 23223
804-729-8585
[email protected]
On November 3, 2015:
David Kerby
Thompson & Kerby Law
Offices
PO Box 65150
4219 85th Street (79423)
Lubbock, TX 79464
806-793-7600
806-793-6882 (fax)
[email protected]
Daniel Zane Swank
Jay Goodman & Associates
Law Firm, PC
2019 Galisteo, Suite C-3
Santa Fe, NM 87505
505-989-8117
505-639-5853 (fax)
[email protected]
Thomas L. Johnson
Johnson Law Firm, LC
111 Lomas Blvd. NW, Suite 205
505-243-4549
505-243-4323 (fax)
[email protected]
Christopher P. Bauman
([email protected])
Mark Clinton Dow
([email protected])
Maria Rebecca Osornio
([email protected])
Deborah R. Stambaugh
([email protected])
Bauman Dow
& Stambaugh, PC
PO Box 30684
7309 Indian School Road NE
(87110)
505-883-3191
505-883-3194 (fax)
Ethan Samuel Simon
Ethan Simon Esq LLC
PO Box 40337
505-288-8408
505-639-4277 (fax)
[email protected]
Kevin J. Kuhn
Wheeler Trigg O’Donnell LLP
370 Seventeenth Street,
Suite 4500
Denver, CO 80202
303-244-1841
303-244-1879 (fax)
[email protected]
Carlos Rincon
Rincon Law Group, PC
1014 N. Mesa, Suite 200
El Paso, TX 79902
915-532-6800
915-532-6808 (fax)
[email protected]
Camie Wade
Thompson & Kerby Law Offices
PO Box 65150
4219 85th Street (79423)
Lubbock, TX 79464
806-793-7600
806-793-6882 (fax)
[email protected]
Robert H. Willis
Bob Willis Law, PLLC
2733 N. Power Road,
Suite 102, #305
Mesa, AZ 85215
480-748-1865
[email protected]
Wyatt Wright
Wayne Wright LLP
5707 W. Interstate 10
San Antonio, TX 78201
210-785-3949
210-734-9965 (fax)
[email protected]
Lawyer
N E W
M E X I C O
November 2015 Volume 10, No. 4
www.nmbar.org
Current Issues in
Bankruptcy Law
Bankruptcy Law Section
New Mexico Lawyer - November 2015 1
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2 New Mexico Lawyer - November 2015
ACCOUNTING & BOOKKEEPING
505.884.8744
The Grave Importance
of a Debtor’s Disclosure in Bankruptcy
By Edward A. Mazel
property. These items are generally
foremost in one’s mind, and are
usually the first things debtors
think of when disclosing assets.
T
he United States bankruptcy
system is a wonderful thing, and
no, I’m not saying that because I
make a living as a bankruptcy attorney
and Chapter 7 panel trustee. Nor do I
mean to imply that individuals’ financial
crises are wonderful things, as they clearly
are not. Rather, a bankruptcy system
offering people in difficult financial
situations an opportunity for a fresh start
is a wonderful thing. Our system is far
from perfect, but it should not be taken
for granted, as we must be mindful that
in some countries, such as China, there
is no similar legal mechanism to assist
individuals experiencing a financial crisis.
The main goal of a Chapter 7 bankruptcy
is usually to obtain a discharge of prepetition debts under 11 U.S.C. § 524.
However, in order to obtain the benefit
of the discharge injunction, the system
requires a full, complete, and accurate
disclosure of any and all property
interests. If debtors fail to make a full,
complete, and accurate disclosure of all of
their property interests, they are exposed
to serious risks. Such risks include losing
the ability to claim an asset or cause of
action exempt1, losing the right to pursue
a claim against third party, having the
discharge denied or revoked, and even
potential criminal charges for intentional
nondisclosure.
The more common omissions from
debtors’ disclosures are typically
some type of claim against a third
party, such as breach of contract
or personal injury claim, or a
partial interest in real property or
an inheritance. Failing to disclose
a claim against a third party in a
bankruptcy can result in the loss
of the debtors’ right to pursue such
claim at a later date or their right
to claim an exemption in such
claim. For example, in 2013, I was
the assigned trustee in a Chapter 7
bankruptcy case2 where the debtors
had entered into a pre-petition
contract for services, paid $5,000
for the services, and subsequently
... a bankruptcy system offering
filed for Chapter 7 bankruptcy
protection prior to the services
people in difficult financial
being rendered. Pursuant to the
terms of the contract, the services
situations an opportunity for a
were to have been provided to the
fresh start is a wonderful thing.
debtors a couple months before
the bankruptcy was filed. When
they were not, the parties entered
Given the numerous and very serious
into
a
settlement agreement extending
consequences for failing to disclose
the
time
for the services to be provided.
assets, debtors’ attorneys must be vigilant
Under the settlement, the services were
in ensuring their clients make a full,
to be provided a few months after the
complete, and accurate disclosure of
bankruptcy was filed.
property interests. Commencement of
a bankruptcy case creates a bankruptcy
In the bankruptcy case, the debtors
estate. This estate is vast and is comprised
did not list the contract right in their
of all legal or equitable interests of the
schedules or disclose any claim or reason
debtor in property as of the date of filing.
to sue anyone when asked under oath
These interests include claims against
at the first meeting of creditors. At the
third parties, contract rights, life estates,
time of the meeting of creditors, the
remainder interests, and even contingent,
services were due to be provided in
unliquidated, or disputed interests.
approximately three weeks, pursuant to
Property of the estate also includes any
the terms of the settlement agreement.
interests in certain property that the
However, I was not made aware of this
debtor acquires or becomes entitled to
contract, the settlement agreement, or
acquire within 180 days after filing a
the debtor’s interest in the contract. After
bankruptcy, such as a bequest, devise, or
the creditors’ meeting, I determined
inheritance, or as a beneficiary of a life
there were no known assets to administer
insurance policy or death benefit plan.
and filed a “no asset” report in the case.
Most, but not all of the time, debtors
Shortly thereafter, the case was closed by
successfully disclose the full extent of
the clerk.
their interests in real property, vehicles,
bank accounts, and tangible personal
Approximately three weeks
after the creditors meeting,
and only two days after the
services were due under the
settlement agreement, the
debtors commenced a lawsuit
against the other contracting
party for failing to provide
the services. The lawsuit
resulted in a judgment in the
debtors’ favor. Subsequently,
I received a call from an
attorney for the judgment
debtor, who had learned of
the debtors’ bankruptcy, and
who inquired as to whether
the debtors had disclosed the
claim in their bankruptcy.
After reviewing the case
and the creditors’ meeting transcript, and
determining the debtors had failed to
disclose their interest in the contract, I
moved to reopen the bankruptcy case so I
could seek to enforce the estate’s contract
rights. Since the debtors’ rights in the
contract were not disclosed, those rights
remained property of the bankruptcy
estate even after the case was closed,
because the general rule is that only
disclosed assets not pursued by the
trustee are abandoned back to a debtor
upon the closing of a case. As a result
of the debtors’ failure to disclose this
interest, they did not have standing to
bring their lawsuit and the judgment
they obtained was void.
Once the case was reopened, I was able
to reach a settlement with the party on the
other end of the contract, and sought court
approval of the settlement. In response, the
debtors objected to the settlement, filed
amended schedules listing their interest in
the contract and/or claim against the other
party, and asserted an exemption for the
full amount of the claim. I objected to the
debtors’ newly-claimed exemption and the
Bankruptcy Court held a final evidentiary
hearing on the settlement motion and
objection to the debtors’ exemption. The
Court found that a debtor’s ability to
amend its exemptions as a matter of right
ends at case closure, but that a court may
allow an amendment in a reopened case
if the debtor can show excusable neglect.
The Court determined the debtors’ failure
to disclose their interest in the contract,
or potential claim, was a result of neglect.
The Court then analyzed whether the
neglect was excusable, and considered
the following factors: (i) the danger of
prejudice to the nonmoving party, (ii) the
length of the delay and its potential impact
on judicial proceedings, (iii) the reason for
to disclose a property interest,
I likely would have pursued
a denial or revocation of the
discharge.
the delay, including whether it was within
the reasonable control of the movants, and
(iv) whether the movant acted in good
faith. The Court determined that these
factors did not carry equal weight, and
put the most weight on the reason for
the delay and whether the movant was at
fault. The Court determined the debtors’
The consequences of failing to
disclose a property interest also
extend well beyond the potential
loss of a debtor’s ability to pursue a
claim or claim an exemption ...
neglect was not excusable, finding three
of the four factors weighed against the
debtors, and the fourth factor, good faith,
to be neutral. In sum, the debtors lost their
right to pursue the claim, simply because
they failed to disclose their interest in
the contract and/or claim against the
contracting party. Unfortunately, in my
short three-year tenure as a Chapter 7
trustee, I have come across this situation
quite often.
The consequences of failing to disclose a
property interest also extend well beyond
the potential loss of a debtor’s ability to
pursue a claim or claim an exemption, and
in some instances can give rise to a denial
or revocation of a debtor’s discharge under
11 U.S.C. § 727. In the case mentioned
above, I did not believe the debtors’ failure
to disclose the contract was intentional,
and based on the testimony given by
the debtors, was satisfied that sufficient
grounds did not exist to attempt to revoke
the debtors’ discharge. However, if I had
believed the debtor had intentionally failed
In order to ensure that
debtors make a full, complete,
and accurate disclosure,
I encourage attorneys to
personally review their client’s
schedules and statement of
financial affairs one question
at a time with their client
prior to filing. Additionally,
I have found it very helpful
in my own practice to
develop a set of questions
or checklists that may elicit
disclosure of some of the
more abstract or intangible property rights.
The schedules and statement of financial
affairs are lengthy, and in my experience
most debtors don’t fully understand what
is being asked of them. Debtors need the
assistance of counsel to carefully review
their schedules and make a full, complete,
and accurate disclosure.
Lastly, defense attorneys may also benefit
in investigating whether a plaintiff has
filed a bankruptcy, and if so, determining
whether the claim the debtor is pursuing
arose prior to, or after, the bankruptcy
was filed. If the claim or property interest
arose prior to the petition, and the debtor
failed to disclose such property interest
or claim, the debtor may lack standing to
pursue the claim, giving the defendant a
strong defense to the debtor’s pursuit of
that claim. 
__________________________
Endnotes
1 Exemptions allow debtors to retain
a certain amount of equity in real and
personal property regardless of the extent
or amount of creditors’ claims. In New
Mexico, bankruptcy debtors may elect
either the (i) New Mexico exemption
scheme found in NMSA 1978, § 42-10-1
et seq., or (ii) Bankruptcy Code exemption
scheme found in 11 U.S.C. § 522(d).
2 In re Smith, 2014 WL 7358808 (Bankr.
D.N.M. Dec. 24, 2014)
Edward A. Mazel’s practice is concentrated
on Chapter 11 bankruptcies, creditor’s rights,
landlord/tenant disputes, and commercial
litigation. In 2012, Mazel was appointed to
the Chapter 7 Bankruptcy Trustee Panel for
the District of New Mexico and continues to
serve in such capacity. Mazel serves on the
Board of Directors and as president-elect of
the State Bar of New Mexico Bankruptcy
Law Section.
A Lifeline for Distressed Companies
By Thomas D. Walker and Leslie D. Maxwell
A
lthough he’s never filed a personal
bankruptcy, Donald Trump is no
stranger to Chapter 11 and the
opportunities it offers over-leveraged and
struggling companies to get back on their
feet. Bankruptcy does not necessarily
mean the death of a company. Rather, it’s
a tool that can offer breathing room—
protections that allow all the players in
a company’s financial life to come into
a single forum to be treated fairly and
appropriately. Under the protection of
the Bankruptcy Code, businesses can sell
assets free and clear of liens, assume or
reject leases, and restructure or discharge
debts. Chapter 11 isn’t just for the too-bigto-fail crowd. It can help enterprises of
modest size survive downturns and thrive
into the future.
Learning from Trump
Donald Trump is a successful real estate
developer who transformed a modest
inheritance into a much greater fortune
by using all the financial and political
tools available to build and maintain his
wealth—including four significant business
bankruptcies. 1 While Trump’s political
opponents have used perceived negative
attitudes about bankruptcy against him, he
argues that he has simply taken advantage
of laws available to all businesses.2 But,
whatever one thinks of Trump the
politician or Trump the entertainer, lawyers
should resist the urge to paint him with
a scarlet “B.” Why? Because Chapter 11
bankruptcy provides some of the most
effective and powerful tools supporting
entrepreneurs in America today.3
While no private New Mexico businesses
may operate on the level of Trump’s
casinos, the available bankruptcy tools
are identical. As New Mexico’s economy
regains footing, businesses that want to
survive into better times should heed
the lessons bigger companies have long
known—Chapter 11 bankruptcy offers
an effective set of tools for bridging the
path to a profitable future. For example,
Trump’s New Jersey casinos used
Chapter 11 to stop foreclosures and other
collection actions, restructure high-interest
debt, eliminate
unsecured debt, and
to pressure organized labor
into more favorable terms. Although
he lost most if not all of his personal
investment, each bankruptcy provided
Trump’s companies with valuable relief
available only in bankruptcy.
Many Business Problems can be
Resolved in Chapter 11
In Chapter 11, businesses can continue
operating despite significant financial
problems, such as unsecured debt that
the business cannot continue to pay
as agreed; secured debts that exceed
the value of the collateral and cannot
be paid under current circumstances;
unproductive or unnecessary real or
personal property, including excessive
equipment, unprofitable locations and
expensive or over-market leases; and, other
financial obligations that inhibit continued
profitable operations.
Good Candidates for Chapter 11
Generally, businesses that have a
reasonable chance of a successful
reorganization require positive cash flow
sufficient to pay post-petition operating
expenses. These costs can include payroll,
payroll taxes, costs of goods, supplies
and maintenance, utilities, rent, and
insurance. Secured creditors’ interests must
be protected, which often requires postpetition payments. Ultimately, a business
must generate sufficient cash flow to pay
for its operations and make payments
on pre-petition debts great enough to
get the support
of its creditors or meet
criteria for imposing a judicially-ordered
repayment plan on its creditors.
Sometimes lack of cash can be overcome.
Businesses that do not have sufficient
cash flow may be able to borrow money
to continue basic operations through
a reorganization if circumstances are
right and a willing lender is available.
Lenders may negotiate favorable terms
and controls that would be unlikely
outside of bankruptcy. Carefully structured
post-petition loans often include regular
access to and close scrutiny of books and
records, specific financial and performance
reporting requirements, enhanced
collateral positions and protections,
advanced priority for repayment, and
other creative loan terms, so long as they
are arguably beneficial to the business and
other creditors. Post-petition financing
is often part of a package of reforms
available only in bankruptcy that give the
company a chance to survive, and in the
process, enhance the prospects for paying
some portion of pre-petition debts.
Other Companies That May Benefit
Single-purpose entities formed to own
and operate commercial real estate can
benefit from bankruptcy reorganization.
Many have negative net-worth or face
negative cash flows due to the depressed
commercial real estate market. Such
entities can reduce the principal balance
on commercial real estate loans and revise
repayment terms to better fit the economic
reality. This is particularly true of incomeproducing properties.
Individual persons and married couples
are often candidates for Chapter 11
reorganizations, particularly in New
Mexico where so many businesses are
sole proprietorships. Sometimes this is
because the individuals have debts or
assets that make them ineligible or poor
candidates for bankruptcies under Chapter
7 or Chapter 13, while on other occasions
prospective petitioners are attracted to
Chapter 11 because of the useful tools it
offers.
Bankruptcy Tools to Consider
The planning and reorganization
provisions available in Chapter 11 are
made possible in many instances by the
general protections and tools bankruptcy
provides. They include:
• Automatic Stay. One of the most
important and powerful tools is
the automatic stay upon filing of a
bankruptcy petition. The automatic
stay is a statutory injunction that
temporarily stops most collection
and enforcement actions and gives
the filer a “breathing spell” to stay
in business while moving forward
with a reorganization plan. The stay
applies to most lawsuits, foreclosures,
repossessions, garnishments, contract
enforcement and collection actions.
The stay permits a business to defer
payment on some obligations while it
continues to use its assets, remain in
business, and attempt to reorganize.
This allows a company the opportunity
to preserve going concern value for a
reorganization or an organized sale
of the going concern. Bankruptcy
can preserve the basic business
operation, name and goodwill, and
retain customers that are often lost in
a foreclosure, lock-out, or piecemeal
liquidation.
• Sell property free and clear of liens
and interests. Chapter 11 debtors
can sell assets free of claims, liens
and interests of all kinds. This tool is
arguably the most powerful of those
available to the Chapter 11 debtor.
These so-called “363 Sales” (named
after the governing Bankruptcy Code
section) can be accomplished through
a Chapter 11 plan or, with increasing
approval, absent a confirmed plan.
Buyers get clean title to property, while
the liens and interests attach to the
proceeds, under the protection of a
federal court order.
• Subordinate debt and adjust
interest rates. In some cases, Chapter
11 debtors can recharacterize
undersecured debt and eliminate or
subordinate the unsecured portion.
Secured creditors may agree or be
compelled to reduce secured debt to
an amount equal to the value of their
collateral. Other creditors may support
the reorganization because they may
get more than they would get in a
liquidation. Sometimes unsecured debt
is converted into an equity interest
with a chance of having future value.
Also, excessive or over-market interest
rates on debts secured by personal and
real property can be restated to better
reflect market conditions and generally
make the success of reorganization
more likely.
• Cure defaults and accelerated debts.
Chapter 11 debtors can cure defaults
on contracts, including mortgages
and leases. This permits debtors to
return to pre-default terms, reverse
default penalties, and get back in good
standing with creditors. Similarly, in
some instances, Chapter 11 debtors
can negotiate extended payment terms
on past due, unsecured tax debts.
• Assume or reject executory contracts
and unexpired leases. Chapter 11
debtors may be able to reject certain
equipment leases, real estate leases, or
other unfulfilled contracts, and assume
the obligations on others. Unprofitable
locations and unproductive equipment
may be returned to the lessors in
order to improve cash flow and
restore profitability. Multi-location
businesses can consolidate operations
into the most efficient structure; retail
businesses can close unproductive
locations and focus on those that
generate profits.
• Avoidance and recovery actions. The
Chapter 11 debtor has the power to
avoid and recover certain pre-petition,
preferential or fraudulent transfers.
Avoidance actions can recover assets
transferred or undo liens to free up
assets for sale or use as additional loan
collateral.
Conclusion
No business, large or small, wants to find
itself looking to the “last resort” of the
bankruptcy laws for help. In these hard
economic times, a company of any size
need not find itself without recourse for
survival. The tools of the Bankruptcy
Code, if wielded early and appropriately,
can set many companies on the road to
recovery. 
_______________________
Endnotes
1 Mr. Trump’s inheritance and current
fortune are subjects of debate beyond the
scope of this article.
2 Under his watch, Trump’s New
Jersey casinos filed four bankruptcies,
in 1991, 1992, 2004 and 2009. On
the first three filings, Trump was not
despondent. “I don’t think it’s a failure,
it’s a success,” Trump reportedly said at
the time. (Associated Press 11/22/04.)
Trump discussed the bankruptcy filings
in positives terms: “We have one of the
most powerful gaming companies the day
it comes out (of bankruptcy). There’s no
way we could have done that without the
’B’ word,” he said. “The future looks very
good.” Trump did not describe the 2009
filing as a success, however.
3 Bankruptcy is typically not a positive
event in the life of a company or in the
community it occupies. It is complicated,
expensive, detail intensive and arduous for
those charged with making it happen. It
can be very hard on employees, suppliers
and investors. It is often the “last resort,”
and for good reason. People lose jobs
and suppliers go unpaid. But oftentimes
such consequences would have happened
anyway. If considered carefully and early
enough (before too much damage is
done), Chapter 11 bankruptcy can point
in the direction of business survival, job
preservation and one less empty local
building. This article is not about the
complicated “mechanics” of a Chapter 11.
It is about the possibilities United States
Code Title 11 offers to the struggling or
failing business and for the lawyers who
are asked, “What can we do?”
Thomas D. Walker is a partner at Walker
& Associates PC where he practices in the
areas of bankruptcy, business transactions,
commercial law and litigation, real estate
law and foreclosure. He attended Tulane
University and the University of New
Mexico School of Law. He is a current board
member and past chair of the State Bar of
New Mexico Bankruptcy Law Section.
Leslie D. Maxwell practices primarily in
bankruptcy and commercial law at Walker
& Associates PC. She received a Bachelor of
Arts in Anthropology from Emory University
in 2003 and her Juris Doctor from the
University of New Mexico School of Law in
2006. Maxwell is on the Board of Directors
of the State Bar of New Mexico Bankruptcy
Law Section.
Second Mortgage Lien Stripping in Chapters 7 and 13
after Bank of America, N.A. v. Caulkett
By Karen H. Bradley and Gerald R. Velarde
B
efore the 2007 financial crisis,
second mortgages, and even third
mortgages, were common, as many
homeowners realized they could tap into
their often substantial home equity to
acquire loans to pay off unsecured debt,
take vacations, and fund other projects.
However, the significant decline in home
values over the last several years has often
erased the equity homeowners had in
their homes. Coupled with the decline
in the economy, which has caused many
to lose their jobs, the result is that many
homeowners are unable to sell their homes
and are unable to pay the first mortgage,
let alone a second or third mortgage. These
unfortunate circumstances have forced a
number of homeowners to seek help from
various resources, including requesting
bankruptcy relief. This article will examine
what, after Caulkett, a homeowner may do
or not do under Chapter 7 and Chapter
13 of the Bankruptcy Code to void a
second lien on a primary residence, when
the homeowner is “underwater” on his/
her mortgage. That is, when the amount
owed on the first lien exceeds the value
of primary residence. Reference to the
homeowner as being “underwater” on the
mortgage will be used throughout this
article.
Chapter 7 or Chapter 13?
Homeowners who are underwater on
their homes generally seek relief under
either Chapter 7 or Chapter 13 of the
... many homeowners are unable
to sell their homes and are unable
to pay the first mortgage, let
alone a second or third mortgage.
Bankruptcy Code. When the debtor wants
to “save the house,” Chapter 13 is selected.
Under Chapter 13, the debtor can keep
the residence by “curing” any pre-petition
arrearages by paying the arrearages over
time through a Chapter 13 Plan, and by
resuming making regular payments to the
mortgage holder. The Chapter 13 filing
will also stop any foreclosure action that
may have been initiated by the mortgage
holder.
In a Chapter 7 case, the debtor generally
receives a discharge of debts that exist
at the time the case is filed. Therefore, if
homeowners do not want to keep their
primary residence, they can walk away
from the mortgages and not be held
personally liable on the notes associated
with the mortgages in any subsequent
foreclosure action. If the homeowners
want to keep the primary residence but
had judgment or other non-consensual
liens which impair their homestead
exemption in the property, they can file a
motion in the Chapter 7 to avoid those
liens.
The Effect of
Caulkett
Prior to June 1,
2015, at least
one circuit
court allowed
homeowners who
were underwater
on their mortgages
to void a junior
mortgage on a
primary residence
in a Chapter 7
case, relying on
11 U.S.C. Section
506 (a) and (d).
See Folendore
v. United States
Small Business
Administration,
862 F.2d 1537 (11th Cir. 1989). The
Court noted that section 506 (a) provides
that a creditor is secured to the extent of
the value of the creditor’s interest in the
property, and is unsecured to the extent
that the value of creditor’s interest is less
than the amount of the allowed claim.
Since Section 506(d) provides that to
the extent that a lien secures a claim
against the debtor that is not an allowed
secured claim, such lien is void, the Court
concluded that since the amount owed on
the senior mortgage exceeded the value of
the residence, the junior lien holder did
not have an allowed “secured claim.”
The homeowner’s ability to void a
junior mortgage in a Chapter 7 case was
squelched on June 1, 2015, when the U.S.
Supreme Court decided the case of Bank
of America, N.A. v. Caulkett and Bank
of America, N.A. v. Toledo-Cardona, 575
U.S. ___, 2015 WL 2464049, 2015 U.S.
Lexis 3579 (Nos. 13-1421 and 14-163,
June 1, 2015). In Caulkett, the Court held
that a debtor homeowner in a Chapter
7 bankruptcy case could not “strip-off ”
or void a junior mortgage on a primary
residence under Section 506(d) when
the debtor was underwater on his/her
mortgage. The Court upheld its prior
decision in Dewsnup v. Timm, 502 U.S.
410 (1992), wherein it defined the term
“secured claim” in Section 506(d) to mean
a claim supported by a security interest
... today’s practitioners should be armed to with answers
to homeowners’ questions as to how to best proceed with a
bankruptcy when they have multiple mortgages.
in property, and found that a “secured
claim” does not depend on whether a lien
is partially or wholly underwater. The
Court declined to accept the homeowner’s
argument that Section 506(d) could be
construed as any claim that is backed by
collateral with some value.
Although Caulkett makes it clear that a
debtor homeowner in a Chapter 7 case
cannot avoid a junior mortgage on a
primary residence when the debtor is
underwater on his/her mortgage, it appears
the ability to do so in Chapter 13 remains
unaffected. In Caulkett, the Court did not
address avoidance of a junior mortgage
on a primary residence in a Chapter 13
bankruptcy case under 11 U.S.C. Section
1322(b)(2). Thus, whereas it is clear after
Caulkett that a debtor who is underwater
on his/her mortgage cannot avoid the
junior mortgage based on Section 506(d),
the issue remains whether the debtor can
avoid the junior mortgage in a Chapter 13
case under Section 1322(b)(2).
Some guidance as to whether, in a
Chapter 13 case, a junior mortgage on a
primary residence can be avoided under
Section 1322(b)(2), may be gleaned from
cases decided before Caulkett. In a case
decided before Caulkett, the Tenth Circuit
considered the issue of whether Section
506(d) allows a Chapter 13 debtor to strip
a second mortgage from the homestead
when the debtors are underwater on their
mortgage. Woolsey v. CitiBank, N.A., 696
F.3d 1266 (10th Cir. 2012). In Woolsey, the
debtor homeowner made substantially the
same argument as that made by the debtor
in Caulkett, i.e. that §506(d) allowed
a strip of a second lien. Although the
Tenth Circuit invited debtors to argue the
applicability of Section 1322(b)(2) to strip
a second lien, the debtors refused to do so.
The Tenth Circuit stated that “in deference
to their wishes, we opt today against
forcing a Section 1322(b)(2) argument
onto the unwilling debtors and leave that
statute and its meaning for another day
when a bankruptcy petitioner actually
wants to pursue the question.” Id. at 279.
Although the Tenth Circuit has not
specifically ruled on the issue, decisions
from various other circuits indicate that
debtors in Chapter 13 cases can avoid a
junior mortgage on a primary residence
when the debtors are underwater on
their mortgage, not pursuant to Section
506(d) as vetoed by Caulkett, but under the
provision specifically applicable to Chapter
13; namely, 11 U.S.C. Section 1322(b)
(2). See Lane v. W. Interstate Bancorp (In
re Lane), 280 F.3d 663 (6th Cir. 2002);
Zimmer v. PSB Lending Corp. (In re
Zimmer), 313 F.3d 1220 (9th Cir. 2002);
Pond v. Farm Specialist Realty (In re Pond),
252 F.3d 122 (2d Cir. 2001); McDonald
v. Master Financial, Inc. (In re McDonald),
205 F.3d 606 (3rd Cir. 2000); Bartee v.
Tara Colony Homeowners Association (In
re Bartee), 212 F.3d 277 (5th Cir. 2000);
Tanner v. FirstPlus Fin., Inc. (In re Tanner),
217 F.3d 1357 (11th Cir. 2000). Based
on dicta in Woolsey and the rulings by
other circuits, it is possible that the Tenth
Circuit (and ultimately the U.S. Supreme
Court) will authorize the use of Section
1322(b)(2) to strip off a junior mortgage
on a primary residence when homeowners
are underwater on their mortgages.
What the Court in Caulkett makes clear
is that a debtor homeowner in a Chapter
7 case can no longer void a wholly
unsecured junior mortgage under Section
506(d) of the Bankruptcy Code. Since the
Court in Caulkett did not address Section
1322(b)(2), however, junior mortgages
can probably still be avoided in Chapter
13, although not under Section 506(d).
A homeowner who is seeking advice on
dealing with junior mortgages on his/
her residence should be made aware that
Chapter 7 now offers limited relief, but
that Chapter 13 continues to be a viable
(albeit expensive, if litigated) option.
Homeowners should be advised that
they should obtain a market analysis or
appraisal of the home, so that a reasonable
value can be assigned. Next, homeowners
should determine the exact amount owed
on the primary mortgage. If the amount
owed on the primary mortgage exceeds the
value of the residence, homeowners can be
advised that a Chapter 13 bankruptcy may
allow the homeowner to avoid the junior
mortgage, and that a motion to avoid
the junior mortgage may be attempted.
However, homeowners should also be
warned that the holder of the junior
mortgage may oppose the avoidance and
may obtain a competing appraisal. At trial,
the issue will be the value of the residence,
which may involve the testimony of (often
expensive) valuation experts.
No longer exist the days when
homeowners are seeking to tap into
financial resources available by means
of their mortgages. Rather, today’s
practitioners should be armed to with
answers to homeowners’ questions as to
how to best proceed with a bankruptcy
when they have multiple mortgages.
Knowing the difference in protections
currently provided under Chapter 7 versus
Chapter 13 bankruptcy proceedings,
following the Court’s decision in Caulkett,
is key to best advising one’s potential
clients. 
Karen H. Bradley is a Managing Partner of
Little, Bradley & Nesbitt PA. Her practice is
primarily limited to representing lenders in
real estate foreclosure, bankruptcy and related
actions.
Gerald R. Velarde is a sole practitioner in
Albuquerque. His practice mainly involves
consumer and small business bankruptcy or
workouts. Velarde serves on the Local Rules
Amendments and Advisory Committee for
the U.S. Bankruptcy Court, District of New
Mexico.
In re Mallo: Dischargeability of Late-Filed Taxes
By Daniel A. White
O
n Dec. 29, 2014, the
Tenth Circuit issued
its opinion in two
consolidated cases, Mallo v. IRS
and Martin v. United States,
announcing a result which would
strike most laypeople as unusual:
because the debtors’ income tax
returns were not timely filed, they
did not constitute tax returns
under 11 U.S.C. § 523(a). In re
Mallo, 774 F.3d 1313 (10th Cir.
2014). The Tenth Circuit came
to this conclusion due to the
so-called “hanging paragraph”
of section 523, that is, the last
unnumbered paragraph of
section 523(a), appearing after
section 523(a)(19). The hanging
paragraph, sometimes referred to
as section 523(a)(*), states in part:
“For purposes of this subsection,
the term ‘return’ means a return
that satisfies the requirements
of applicable nonbankruptcy
law (including applicable filing
requirements).” Relying on
decisions in the context of habeas
petitions, bankruptcy appeals,
and a criminal prosecution for
willful failure to file corporate tax
returns, the Tenth Circuit held
that the timeliness of a tax return
is a “requirement of applicable
nonbankruptcy law” under the
hanging paragraph. Id. at 1321.
... in the Tenth Circuit, any tax
debt for a tax year with a late-filed
tax return is nondischargeable ...
The Tenth Circuit went on to explain that,
as a result, tax debts associated with late
returns were not dischargeable under the
bankruptcy code by operation of 11 U.S.C.
§ 523(a)(1)(B)(i), which provides that
individual debtors may not discharge debts
“for a tax or a customs duty—with respect
to which a return, or equivalent report
or notice, if required—was not filed or
given.” The impact of this holding should
not be understated: in the Tenth Circuit,
any tax debt for a tax year with a late-filed
tax return is nondischargeable, unless
the return was filed under a safe harbor
provision. The Tenth Circuit’s conclusion
was based on the Fifth Circuit’s similar
holding in In re McCoy where the Fifth
Circuit held that “[u]nless it is filed
under a ‘safe harbor’ provision similar to
[26 U.S.C.] § 6020(a), a state income
tax return that is filed late under the
applicable nonbankruptcy state law is not
a ‘return’ for bankruptcy dischargeability
purposes under § 523(a).” In re Mallo, 774
F.3d 1313, 1321-22 (10th Cir. 2014); In re
McCoy, 666 F.3d 924 (5th Cir. 2012).
What is interesting in Mallo is that, not
only did the Mallo taxpayers not want
McCoy to be adopted, but “[t]he United
States agree[d] that the interpretation in
McCoy should not be followed or applied,
and specifically indicate[d] that it ‘does not
advocate adoption of McCoy as it leads to
harsh results that would penalize taxpayers
who file even a day late and without
requiring government intervention to
assess the tax.’” In re Mallo, 498 B.R. 268,
277 (D. Colo. 2013) aff ’d 774 F.3d 1313
(10th Cir. 2014). In the underlying case,
the District of Colorado declined to
adopt McCoy, and instead held that the
timeliness of a tax return was relevant to
whether the taxpayers made “an honest
and reasonable attempt to comply with
tax law” under the Beard test. Id. at 281.
The Beard test is a four part test assessing,
“whether the filings: ‘1) purported to be
returns; 2) were executed under penalty
of perjury; 3) contained sufficient data
to allow computation of tax; and 4)
represented an honest and reasonable
attempt to satisfy the requirements of the
tax law.’” Id. at 272 (quoting Wogoman
v. IRS (In re Wogoman), 475 B.R. 239
(10th Cir. BAP 2012). See also Beard v.
C.I.R., 793 F.2d 139 (6th Cir. 1986). The
District of Colorado found that because
there was no “claim of circumstances
beyond a taxpayer’s control that prevented
him or her from filing a timely return,”
the taxpayer’s return did not qualify as a
tax return for dischargeability purposes.
However, on appeal, the Tenth Circuit
overruled the District of Colorado and
adopted the McCoy rule.
The McCoy rule provides that an untimely
tax return is not a “return.” This appears
to be contradicted by the language of
section 523(a)(1)(B)(ii), which refers to
tax debts “with respect to which a return,
or equivalent report or notice was filed or
given after the date on which such report
or such return, report or notice was last
due, under applicable law or under any
extension.” Under the McCoy rule, there
can be no such thing, except for returns
prepared by the taxing authority and
signed by the taxpayer under 26 U.S.C.
§ 6020(a), or similar state or local law,
because in any other instance, a return
that is not timely filed is not a ‘return’ at
all. However, this contradicts the plain
language of section 523(a)(1)(B)(ii),
which contemplates late-filed tax returns
in broader circumstances than returns
prepared by the taxing authority and
signed by the taxpayer under 26 U.S.C. §
6020(a), or similar state or local law.
In Mallo, the taxpayers argued that the
McCoy rule renders section 523(a)(1)(B)
(ii) meaningless because section 523(a)
(1)(B)(ii) renders debts for taxes with
respect to which the debtor filed a latefiled tax return nondischargeable “after
two years before the date of the filing of
the petition.” In re Mallo, 774 F.3d 1313,
1323 (10th Cir. 2014). If all late-filed
tax returns are nondischargeable under
section 523(a)(1)(B)(i), then this section is
surplusage. The Tenth Circuit considered
this argument but rejected it. The Tenth
Circuit explained that returns filed late
under section 523(a)(1)(B)(ii) but not the
hanging paragraph would include returns
The IRS’s official position
has been that the key point
is whether the taxpayer
filed a return before or
after the tax was assessed,
because in the IRS’s view,
it is the assessment of the
tax that creates a debt. In
re Wogoman, 475 B.R. 239,
250-251 (BAP 10th Cir.
2012). This view predates
the Bankruptcy Abuse
Prevention and Consumer
Protection Act of 2005, and
has not been widely accepted.
See, e.g., Id. (citing Savage
v. IRS (In re Savage), 218
B.R. 126 (10th Cir. BAP
1998)); In re Briggs, 511
B.R. 707, 712 (Bankr. N.D.
Ga. 2014). However, certain
courts have been receptive
to this line of reasoning,
including the First Circuit’s
Bankruptcy Appellate Panel
and the Bankruptcy Court
This disagreement shows signs of
for the Central District of
becoming a circuit split, and presents California. Those courts
adopted the IRS’s position
a potential pitfall for debtors’ counsel. in recent cases, and held that
taxes for which the taxpayer
filed a late return prior to
prepared by the IRS under 26 U.S.C.
assessment could be discharged under
§ 6020(b). These returns are prepared
section 523(a)(1)(B). In re Gonzales, 506
and signed by the IRS, and specifically
B.R. 317, 326-328 (1st Cir. BAP 2014);
excluded from the hanging paragraph’s
In re Pitts, 497 B.R. 73 (Bankr. C.D. Cal.
definition of a return which “satisfies the
2013).
requirements of applicable nonbankruptcy
law”. Id. at 1323-1325.
In conclusion, whether a “late-filed tax
return” can even exist outside of the narrow
The end result of the Tenth Circuit’s
confines of 26 U.S.C. § 6020(a) or similar
adoption of the McCoy rule is that
state or local law, and the precise rules
taxpayers who do not file a return and
regarding dischargeability of tax debt for
then have their returns prepared for them
which a return was filed late, are presently
under 26 U.S.C. § 6020(a) by the IRS
the subject of a nascent disagreement
may potentially be eligible to receive
among courts nationwide. This
a discharge of the debt in bankruptcy,
disagreement shows signs of becoming a
while a taxpayer who filed a tax return
circuit split, and presents a potential pitfall
a day late would not receive the same
for debtors’ counsel. 
treatment. This creates an incentive for
taxpayers contemplating bankruptcy who
Daniel White is a bankruptcy attorney with
have not filed tax returns for certain years
Askew & Mazel LLC in Albuquerque. He is
to petition the IRS for returns prepared
newsletter editor of the American Bankruptcy
under 26 U.S.C. § 6020(a), rather than
Institute’s young and new members committee
simply filing their own returns. However,
and on the Board of Directors of the State Bar
the IRS currently does not have sufficient
of New Mexico Bankruptcy Law Section.
resources with which to prepare returns
under 26 U.S.C. § 6020(a).
Articles printed in this publication are solely the opinion of the authors. Publication of any article in the New Mexico Lawyer is not deemed to be an endorsement by the State Bar of New
Mexico or the Board of Bar Commissioners of the views expressed therein. The New Mexico Lawyer’s purpose is to provide an educational resource for all members of the State Bar on matters
related to the justice system, the regulation of the legal profession and the improvement of the quality of legal services.
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19
Advance Opinions
http://www.nmcompcomm.us/
From the New Mexico Supreme Court and Court of Appeals
Certiorari Denied, June 11, 2015, No. 35,283
Opinion Number: 2015-NMCA-077
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
MATTHEW SANCHEZ,
Defendant-Appellant
Docket No. 32,664 (filed April 13, 2015)
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
STEPHEN D. PFEFFER, District Judge
HECTOR H. BALDERAS
Attorney General
PAULA E. GANZ
Assistant Attorney General
Santa Fe, New Mexico
for Appellee
Opinion
J. Miles Hanisee, Judge
{1}Convicted of murder in the second
degree and third-degree tampering with
evidence, Defendant Matthew Sanchez
asserts three points of appeal: (1) the
district court committed reversible error
by allowing the State to question a witness regarding a prior act of Defendant
that led to an unrelated assault charge,
(2) insufficient evidence existed to support his conviction for tampering with
evidence, and (3) the district court’s entry
of conviction for third-degree tampering
with evidence constituted fundamental
error. We determine that Defendant’s own
areas of trial inquiry permitted the State, as
allowed and limited by the district court,
to inquire regarding the witness’s awareness of the prior act. We also hold that
Defendant’s conviction for third-degree
tampering with evidence was supported by
sufficient trial evidence and was properly
adjudicated. Accordingly, we affirm.
BACKGROUND
{2}On September 10, 2011, Defendant
fatally stabbed his friend Tupac Amaru
Leyba (Victim) in the chest and later threw
the weapon from his car window as he departed the scene of the stabbing. The knife
was never recovered. At trial, Defendant
20
JORGE A. ALVARADO
Chief Public Defender
WILL O’CONNELL
Assistant Appellate Defender
for Appellant
testified and admitted that he stabbed
Victim and lied to the police when interviewed following the fatal event. However,
he maintained that he acted exclusively in
self-defense.
{3} During cross-examination of a State’s
witness (Witness), defense counsel asked
if Witness remembered stating at a preliminary examination that Defendant
“was a very nice guy, that he’s very quiet
and that he never really talked, that he was
just a nice guy.” When Witness indicated
that she did recall making that statement,
defense counsel went on to inquire of
Witness whether Victim had enemies,
what if any alcohol or other mood-altering
substances had been consumed that night,
and whether Victim habitually carried
a weapon. After this exchange, the State
notified the court that it intended to offer rebuttal evidence regarding Witness’s
opinion of Defendant’s demeanor and
character. Despite the State’s warning, defense counsel further questioned Witness
if she had ever seen Defendant “become
aggressive in any way toward [Victim.]”
Witness stated that she had not.
{4}Following this testimony, the State
sought to rebut what it perceived to be
the presentation of character evidence
by Defendant. It argued that by eliciting
opinion testimony from Witness regarding
her impressions of Defendant’s peaceable
demeanor, defense counsel had opened the
door to inquiry concerning three separate
incidents that bore the potential capacity
to change Witness’s positive opinion of
Defendant. The events consisted of Defendant: (1) discharging a gun over the heads
of his family members, (2) threatening to
kill a man over a debt, and (3) ramming a
law enforcement vehicle and fleeing from
police. Defense counsel objected, arguing
that his queries had not opened the door
to the State’s desired topics of rebuttal and
that admission of such prior act evidence
would unfairly prejudice Defendant.
{5} After pointing out that it was defense
counsel’s questioning that elicited the pertinent character trait of Defendant being a
“calm and very nice guy” and recognizing
the State’s opportunity to “present evidence
of something other than that[,]” the district court conducted an inquiry designed
to determine whether the specific events of
which the State proposed to question Witness were properly admissible. Although
it initially ruled that admitting questions
regarding the three prior incidents would
cause undue delay and confusion of issues for the jury, after conducting its own
research, the district court determined
that Rule 11-404(A) NMRA, governing
the admissibility of character evidence
offered by a defendant and rebutted by
the State, controlled the inquiry. Pursuant to the rule, the court permitted the
State to question Witness regarding her
awareness of one prior event in order to
rebut the character trait placed at issue by
Defendant.
{6}Although the court found each of
the State’s three desired topics of rebuttal inquiry to be supported by good
faith, it nonetheless disallowed inquiry
regarding the second and third events
on the basis that both had been initially
charged but were later dismissed by the
State. Noting that Defendant was then
separately indicted for the crime of aggravated assault with a deadly weapon,
the district court announced its intention
to allow the State to question Witness
regarding any awareness she possessed of
Defendant having discharged a firearm
over the heads of his family members. It
further ruled that upon any such inquiry,
Defendant would be entitled to a limiting
instruction regarding the jury’s use of that
evidence. The parties submitted proposed
versions of the question to be asked of
Witness regarding the shooting incident,
Advance Opinions
and based again on its research the court
chose to allow a “modified . . . proposal
of the State[.]” The question presented to
Witness, in relevant part, was as follows:
“Were you aware that . . . Defendant had
been accused of aggravated assault with
a deadly weapon for going to the property of an individual not associated with
this case and shooting a gun five to six
times?” When Witness declared herself
to be unaware of the incident, the State
asked: “If you were aware of that . . ., would
your opinion have changed?” Witness
responded affirmatively.
{7}Immediately thereafter, the district
court verbally provided the jury with a
previously agreed to limiting instruction,
stating that it had “allowed questions by
the prosecution to test the opinion previously expressed by this witness to the effect
that . . . Defendant . . . is a calm and very
nice person” and that the questions asked
were “not in and of themselves evidence
that the matters which form the basis of
the questions did, in fact, occur and [the
jury] must not consider these questions
for any purpose other than the right of the
prosecution to test an opinion of a witness
as to an asserted characteristic of . . . Defendant.” The instruction was repeated
and twice reiterated by the court prior to
closing arguments and included within
the printed instructions given to the jury
prior to deliberation. The jury convicted
Defendant of third-degree tampering with
evidence and second-degree murder, and
Defendant appeals.
A.The District Court Properly
Admitted Rebuttal Character
Evidence
{8}Defendant contends that the district
court committed reversible error in allowing the State “to ask a question which
recited unproven facts of an unrelated
aggravated assault case against [Defendant].” Defendant specifically argues that
the State’s “naked assertion” of the occurrence of a separate shooting incident was
highly prejudicial. He additionally appears
to challenge allowance of the question on
grounds that it violated the general prohibition on prior acts evidence.
{9}Rule 11-404(A) governs both the
allowance and limitation of character
evidence. See id. It states that “[e]vidence
of a person’s character or character trait
is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.” Rule
11-404(A)(1). However, an exception to
this prohibition exists in criminal cases,
permitting “a defendant to “offer evidence
of the defendant’s pertinent trait, and if
the evidence is admitted, the prosecutor
may offer evidence to rebut it[.]” Rule
11-404(A)(2)(a). Moreover, “[o]n crossexamination of the character witness, the
court may allow an inquiry into relevant
specific instances of the person’s conduct.”
Rule 11-405(A) NMRA. We review the
admission of evidence during trial for an
abuse of discretion and will not disturb a
district court’s ruling “absent a clear abuse
of that discretion.” State v. Stanley, 2001NMSC-037, ¶ 5, 131 N.M. 368, 37 P.3d 85.
{10} We first emphasize that Defendant
fails to provide any analysis or discussion
of Rule 11-404, or Rule 11-405, whatsoever in his briefing. Moreover, Defendant
does not appear to challenge whether
his questioning of Witness during crossexamination was directed toward the
establishment of his peaceable nature.
Instead, Defendant relies exclusively on
a single case, State v. Christopher, 1980NMSC-085, 94 N.M. 648, 615 P.2d 263, in
which our Supreme Court considered the
propriety of the state’s cross-examination
of character witnesses regarding their
knowledge of the defendant’s criminal
convictions twenty-three years earlier, as
well as a separate and more recent allegation of spousal assault. Id. ¶ 2.
{11} First addressing the prior convictions, our Supreme Court adopted the
reasoning of Michelson v. United States,
335 U.S. 469 (1948) (upholding crossexamination inquiry of character witnesses
regarding awareness of the defendant’s
prior conviction and the defendant’s separate prior arrest), and determined that the
district court erred in allowing testimony
regarding the prior convictions because:
(1) the district court failed to conduct an
inquiry into whether the past events had
occurred; (2) “none of the witnesses had
known the [defendant] for more than six
years”; (3) the district court did not provide the jury with a limiting instruction;
(4) “the defendant offered no evidence
of specific prior acts”[;] and (5) defense
counsel objected to the state’s inquiry.
Christopher, 1980-NMSC-085, ¶ 16-17.
Separately, the Court considered the propriety of the state’s inquiry into the alleged
spousal assault and once more determined
that the district court erred, in part, because the abuse claim was supported by
nothing more than the wife’s allegation;
further, the district court neglected to
separately assess the veracity of the state’s
desired questions. Id. ¶¶ 21-23. Again,
the Court emphasized the district court’s
failure to instruct the jury as to the limited
purpose of the state’s questioning. Id. ¶ 25.
{12} Defendant applies the Michelson
factors, adopted in Christopher, and asks
us to reverse on these grounds. However,
Christopher and its analysis of the Michelson factors are distinguishable. First, we
note that in spite of Defendant’s reliance
on the Michelson factors, our Supreme
Court adopted that reasoning specifically
with regard to the prior convictions at
issue in Christopher. 1980-NMSC-085, ¶
11. Here, whether or not Defendant had
prior convictions was not at issue, nor
was the admissibility of any such evidence.
Furthermore, unlike the circumstances
surrounding the alleged spousal assault in
Christopher, the district court here carefully assessed the veracity of the events
upon which the State sought to question
Witness and ultimately found only the
shooting incident, for which Defendant’s
indictment by a grand jury was then pending, to be an appropriate avenue of rebuttive inquiry. In so ruling, the district court
rejected two of the prior acts that the State
maintained to be appropriate instances
to rebut the implication of peaceableness
provided to the jury during Witness’s
cross-examination by Defendant. Thus, the
district court only allowed that which fit
within the plain language of the rule and
bore independent indicia of reliability pursuant to the independent charging process.
Most critically, the court was repetitiously
diligent in ensuring that the jury was
aware of the limited purpose of the State’s
questioning. Not only did it provide an
immediate verbal limiting instruction following Witness’s responsive testimony, but
it again verbally admonished the jury as to
its limited ability to consider the testimony
twice before closing arguments and again
within the jury instruction packet. For
these reasons, we conclude that Christopher, and its application of the Michelson
factors, is distinguishable.
{13} Apart from Christopher, we reiterate
that while Rule 11-404(A) prohibits the admission of evidence of a person’s character
trait “to prove that on a particular occasion
the person acted in accordance with the
character or trait[,]” it does allow a defendant to offer evidence of his or her own
pertinent trait. Rule 11-404(A)(1), (A)(2)
(a). Defendant, through his questioning
of Witness, elicited evidence of his nice,
quiet, and non-aggressive nature, going so
far as to refresh Witness’s recollection of
her own prior testimony. Under Rule 11-
21
Advance Opinions
404(A)(2)(a), such evidence is subject to
rebuttal by the State. See State v. Martinez,
2008-NMSC-060, ¶ 24, 145 N.M. 220, 195
P.3d 1232 (stating that when a defendant
offers evidence of his or her own good
character, the defendant opens the door
to the state’s ability to question witnesses
about “their awareness of information
inconsistent with good character”). And
while evidence of a person’s character or
character trait is typically only permitted
to be proven by reputation or opinion
testimony, pursuant to Rule 11-405(A)
“specific instances of the person’s conduct”
are permitted on cross-examination of a
character witness. Evidence allowed by
both rules was precisely the nature of that
which was made available to the jury during Defendant’s trial.
{14} Although we recognize that Witness was the State’s witness, and the State
was not cross-examining Witness, but
redirecting, Defendant has not asserted
the inapplicability of Rule 11-404(A) or
Rule 11-405 on appeal, and like the district court before us, we note that this is
a “parallel” situation where the State was
essentially “cross-examining [Witness] on
redirect and [seeking] to bring up” matters
already raised by Defendant. As Defendant
has cited no authority on this factual nuance, we may assume none exists. State v.
Godoy, 2012-NMCA-084, ¶ 5, 284 P.3d
410 (“Where a party cites no authority to
support an argument, we may assume no
such authority exists.”). Thus, based on the
distinguishable characteristics of Christopher and our interpretation of the directly
applicable provisions of Rule 11-404(A)(2)
(a) and Rule 11-405(A), we conclude that
the limited inquiry allowed by the district
court coupled with its repeated cautionary
instructions did not amount to an abuse
of discretion, and we affirm Defendant’s
conviction for second-degree murder.
B.The Evidence was Sufficient to
Support Defendant’s Conviction
for Tampering with Evidence
{15} Defendant challenges the sufficiency
of the evidence against him for tampering with evidence pursuant to State v.
Franklin, 1967-NMSC-151, 78 N.M. 127,
428 P.2d 982, and State v. Boyer, 1985NMCA-029, 103 N.M. 655, 712 P.2d 1.
Defendant argues that “a reasonable jury
should have found him not guilty” due to
the conflicting evidence presented at trial.
Defendant maintains that “the clear weight
of the evidence[] shows that he did not
intend to mislead investigators when he
disposed of the knife.” The State responds
22
that the evidence is for the jury to weigh,
and the “jury may draw its own conclusions about Defendant’s intent based upon
[the] overt action of throwing the knife out
the [car] window as he drove away” from
the crime scene. We conclude that there
was sufficient evidence presented to the
jury to support Defendant’s conviction for
tampering with evidence.
{16} “The test for sufficiency of the evidence is whether substantial evidence of
either a direct or circumstantial nature
exists to support a verdict of guilt beyond
a reasonable doubt with respect to every
element essential to a conviction.” State v.
Duran, 2006-NMSC-035, ¶ 5, 140 N.M. 94,
140 P.3d 515 (internal quotation marks and
citation omitted). We review the evidence
in the “light most favorable to the guilty
verdict, indulging all reasonable inferences
and resolving all conflicts in the evidence
in favor of the verdict.” State v. Garcia,
2011-NMSC-003, ¶ 5, 149 N.M. 185, 246
P.3d 1057 (internal quotation marks and
citation omitted). In our capacity as a reviewing court, we do not share the original
ability of the jury to view the evidence and
witnesses firsthand; therefore, we defer to
the jury’s findings. Id. We will not “reweigh
the evidence or attempt to draw alternative inferences from the evidence.” State v.
Estrada, 2001-NMCA-034, ¶ 41, 130 N.M.
358, 24 P.3d 793.
{17} Our Legislature has defined the elements of tampering with evidence to be:
(1) “destroying, changing, hiding, placing
or fabricating any physical evidence[,]” (2)
“with intent to prevent the apprehension,
prosecution or conviction of any person[,]
or to throw suspicion of the commission
of a crime upon another.” NMSA 1978,
§ 30-22-5(A) (2003). Because tampering
with evidence is a specific intent crime,
conviction requires that the State present
sufficient evidence to allow a jury to infer
both an overt act and the defendant’s
subjective, specific intent. State v. Jackson,
2010-NMSC-032, ¶ 11, 148 N.M. 452, 237
P.3d 754. However, “[w]hen there is no
other evidence of the specific intent of the
defendant to disrupt the police investigation, intent is often inferred from an overt
act of the defendant.” Duran, 2006-NMSC035, ¶ 14.
{18} In this case, Defendant testified
that after he stabbed Victim with a knife,
he “jumped . . . in the car and . . . took
off real fast” because he was scared and
“just freaked out.” He stated that he then
“threw the knife out and . . . noticed [his
phone] charger was hanging out.” At this
point, Defendant realized he had dropped
his phone, further deduced its possible
presence at the scene of the stabbing,
and reversed direction to retrieve it.
Upon arriving and observing that Victim
remained where he had been stabbed,
Defendant left. He explained to the jury
that he did not want Victim to “start
another conflict.” When asked why he
discarded the knife, Defendant stated that
it “was [his] first reaction. [He] wanted to
get it away” as he “just freaked out.” He
contended that his purpose in discarding
the knife was not to avoid being implicated
in the crime.
{19} Defendant’s testimony describing having thrown the knife from his
vehicle satisfies the first element of tampering insofar as his act removed or
concealed an item of evidence. See § 3022-5(A). Although Defendant contends
that “the evidence suggests [] a reasonable
doubt . . . that [he] was guilty of tampering
with evidence and that a reasonable jury
should have found him not guilty,” it is
the role of the jury to weigh the credibility
of a witness. State v. Santillanes, 1974NMCA-092, ¶ 2, 86 N.M. 627, 526 P.2d
424. “The fact finder can choose to believe
the [s]tate’s testimony and disbelieve [the
d]efendant’s version of events.” State v.
Fierro, 2014-NMCA-004, ¶ 40, 315 P.3d
319, cert. denied, 2013-NMCERT-012, 321
P.3d 127. There is sufficient evidence in the
record to support Defendant’s conviction
for tampering with evidence; therefore
we affirm the conviction. State v. Sutphin,
1988-NMSC-031, ¶ 21, 107 N.M. 126, 753
P.2d 1314 (“Where . . . a jury verdict in a
criminal case is supported by substantial
evidence, the verdict will not be disturbed
on appeal.”).
C.Entry of Conviction for ThirdDegree Tampering Did Not
Constitute Fundamental Error
{20} Based on Defendant’s act discarding the knife used to kill Victim, he was
charged with third-degree tampering with
evidence, which forbids tampering with
evidence relating to a capital crime or of
a first-or second-degree felony. Section
30-22-5(A), (B)(1). At trial, the jury was
instructed that in order to find Defendant
guilty of tampering with evidence, Defendant must have “hid or placed the knife”
used to stab Victim in order to prevent his
apprehension or prosecution. The jury was
not, however, instructed that the evidence
must have related to a second-degree
felony. Therefore, Defendant argues that he
was improperly convicted of third-degree
Advance Opinions
tampering because the State’s tampering
instruction failed to ensure the jury’s
determination that Defendant intended
to prevent his conviction related to a
particular crime. Absent such a finding,
Defendant argues that his sentence for
third-degree tampering with evidence violated his Sixth Amendment constitutional
rights.
{21} We typically review this constitutional issue de novo. State v. Alvarado,
2012-NMCA-089, ¶ 5, ___ P.3d ___.
However, as Defendant concedes that
this issue was not properly preserved, we
review solely for fundamental error. State
v. Herrera, 2014-NMCA-007, ¶ 4, 315 P.3d
343. “The rule of fundamental error applies
only if there has been a miscarriage of
justice, if the question of guilt is so doubtful that it would shock the conscience to
permit the conviction to stand, or if substantial justice has not been done.” State v.
Orosco, 1992-NMSC-006, ¶ 12, 113 N.M.
780, 833 P.2d 1146.
{22} As we have stated, tampering with
evidence is, in relevant part, “destroying,
changing, hiding, placing or fabricating any physical evidence with intent to
prevent the apprehension, prosecution
or conviction of any person[.]” Section
30-22-5(A). “Section (B) [of the statute]
establishes levels of punishment depending on the degree of crime for which
tampering with evidence is committed.”
Jackson, 2010-NMSC-032, ¶ 20 (internal
quotation marks omitted). A person is
guilty of third-degree tampering “if the
highest crime for which tampering with
evidence is committed is a capital or
first[-]degree felony or a second[-]degree
felony[.]” Section 30-22-5(B)(1). “[I]f the
highest crime for which tampering with
evidence is committed is indeterminate,”
such that no crime underlying the tampering could be identified, a person is guilty of
a fourth-degree felony. Section 30-22-5(B)
(4); Jackson, 2010-NMSC-032, ¶ 21.
{23} Defendant was charged with tampering with evidence of a second-degree
felony as prohibited by Section 30-22-5(B)
(1). At trial, the district court generally
instructed the jury on tampering with
evidence; the instruction did not require
the jury to find that Defendant’s act of
tampering related specifically to a seconddegree felony. It merely stated that in order
to find Defendant guilty of tampering with
evidence, the State must prove beyond a
reasonable doubt that Defendant “hid or
placed the knife used to stab [Victim]”
and by doing so, “[D]efendant intended
to prevent his apprehension, prosecution,
or conviction.
{24} Defendant relies upon Alvarado,
where we held that “when a defendant is
charged with third[-]degree tampering
with evidence of a capital, first, or second[-]degree felony,” the State must prove,
beyond a reasonable doubt, that the evidence with which the defendant tampered
related to the underlying felony. 2012NMCA-089, ¶ 16. Because the State did not
provide such proof, we determined that the
proper resolution was for the defendant
to be sentenced under the indeterminate
crime provision of the statute. Id. While
we acknowledge the analogous nature of
Alvarado and the case before us, we view
Defendant’s case to be more appropriately
on point with Herrera, 2014-NMCA-007,
where, in an identical fundamental error
analysis, this Court considered the issue
of whether, in the case of a conviction and
sentence for third-degree tampering with
evidence, the omission of a finding that the
weapon was evidence of a second-degree
felony violated a defendant’s right to have a
jury find all elements of the offense beyond
a reasonable doubt. Herrera, 2014-NMCA007, ¶¶ 4, 7. We determined that for the
purpose of a Sixth Amendment challenge
that argues for entitlement to a jury determination of guilt beyond a reasonable
doubt as to every element of the charged
crime, the factors contained within Subsection (B) of the tampering statute were
such that they “must be interpreted as
elements of the offence, rather than mere
sentencing factors.” Herrera, 2014-NMCA007, ¶¶ 8, 13. Although we recognized that
“the failure to instruct the jury on one of
the elements of the offense of third-degree
tampering with evidence was error[,]”
offending the defendant’s rights under
the Sixth Amendment, the error did not
amount to fundamental error as it was
clear that on review of the entire record,
the evidence presented at trial established
the missing element. Id. ¶ 17.
{25} Here, Defendant testified at trial that
he stabbed Victim and “threw the knife
out” of the window of his moving vehicle.
In finding Defendant guilty of tampering
with evidence, the jury determined that
Defendant “tossed the knife” with the intent to prevent his apprehension, prosecution, or conviction. Additionally, the jury
found that the act of stabbing Victim with
a knife was second-degree murder. Our
review of the record herein reveals that the
only evidence presented at trial that related
to Defendant’s discard of the knife was the
act of stabbing Victim. Because the jury
concluded that the stabbing constituted
a second-degree felony, “the facts at trial
established that the tampering related to
a second-degree felony.” Id. ¶ 18. While
the factors contained in Subsection (B)
of Section 30-22-5 are essential elements
of the crime of tampering with evidence,
and “the omission of an essential element
of an offense will often be found to be
fundamental error,” the evidence at trial
clearly established the missing element,
and therefore, we hold that the district
court did not fundamentally err. Herrera,
2014-NMCA-007, ¶ 17 (“If it is clear that
the missing element was established by
the evidence at trial, the fact that the jury
was not instructed on the element is not
considered fundamental error.”).
CONCLUSION
{26} For the forgoing reasons, we affirm
Defendant’s convictions for second-degree
murder and third-degree tampering with
evidence.
{27} IT IS SO ORDERED.
J. MILES HANISEE, Judge
WE CONCUR:
MICHAEL E. VIGIL, Chief Judge
M. MONICA ZAMORA, Judge
23
Advance Opinions
Certiorari Granted, July 17, 2015, No. 35,302
Opinion Number: 2015-NMCA-078
SARA CAHN,
Plaintiff-Appellee,
v.
JOHN D. BERRYMAN, M.D.,
Defendant-Appellant
Docket No. 33,087 (filed April 30, 2015)
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
NAN G. NASH, District Judge
FELICIA C. WEINGARTNER
LAW OFFICES OF
FELICIA C. WEINGARTNER, P.C.
Albuquerque, New Meixco
TERRY M. WORD
TERRY M. WORD, P.C.
Albuquerque, New Mexico
CID D. LOPEZ
LAW OFFICE OF CID D. LOPEZ LLC
Opinion
Michael E. Vigil, Chief Judge
{1}This is a medical malpractice action
against a qualified healthcare provider
under the Medical Malpractice Act, NMSA
1978, §§ 41-5-1 to -29 (1976, as amended
through 2008). When Plaintiff learned she
had a malpractice claim against Defendant,
ten and one-half months remained under
the Act’s three-year statute of repose to sue
Defendant. Section 41-5-13. The question
posed is whether this was a constitutionally reasonable period of time for Plaintiff to
file her lawsuit against Defendant. Because
we conclude that, consistent with due
process, Plaintiff had a reasonable period
of time to sue Defendant, and Defendant
was not named until eleven months after
the statute of repose expired, Plaintiff ’s suit
against Defendant is barred. The district
court having ruled otherwise, we reverse.
BACKGROUND
{2} On May 17, 2006, Plaintiff, Sara Cahn,
went to the emergency room of Lovelace
24
CARMELA D. STARACE
for Appellee
WILLIAM P. SLATTERY
DANA S. HARDY
HINKLE, HENSLEY, SHANOR
& MARTIN, LLP
EMILY A. FRANKE
BUTT THORNTON & BAEHR PC
for Appellant
Women’s Hospital complaining of abdominal and pelvic pain. Plaintiff received
a pelvic ultrasound on May 19, 2006, at
Lovelace West Mesa Medical Center, and
the ultrasound report stated that there was
a complex mass on Plaintiff ’s left ovary and
noted that “[a] malignancy need[ed] to be
excluded.” Plaintiff was twenty-seven years
old.
{3}The one and only time Plaintiff was
seen by Defendant, Dr. Berryman, was on
August 8, 2006, to review the ultrasound
report that Plaintiff hand carried to the
appointment and gave to Defendant.
Defendant did not disclose to Plaintiff
the findings contained in the ultrasound
report. Instead, Defendant examined
Plaintiff and diagnosed her with endometriosis and prescribed approximately three
months of suppressive therapy (contraceptive patches) to treat her symptoms.
{4}Plaintiff used her debit card to pay
the $30 co-payment to Sandia OB/GYN,
Defendant’s employer, and Plaintiff ’s insurer, Lovelace Health Plan, mailed her
an Explanation of Benefits (EOB) form
dated August 23, 2006, which identified
Defendant as the doctor Plaintiff saw on
August 8, 2006. The EOB form was mailed
to an address where Plaintiff no longer
lived, but her mail was being forwarded
to where she was living.
{5} Plaintiff moved to Wyoming and saw
Dr. Mary Girling on September 22, 2008,
for continuing abdominal pain. Dr. Girling
reviewed the May 19, 2006, ultrasound
report, and told Plaintiff of the ultrasound
findings. Plaintiff now knew she had a
medical malpractice claim against Defendant. Further tests confirmed Plaintiff had
ovarian cancer, and over the next three
and one-half months, Plaintiff underwent
surgery and treatment in New York and
Boston, which included a total hysterectomy to remove her uterus and ovaries.
Plaintiff hired counsel in December 2008
to pursue her malpractice claim against
Defendant.
{6}Plaintiff did not know Defendant’s
name. Despite Plaintiff ’s efforts and those
of her attorneys, which we describe in
more detail below, Plaintiff first learned of
his name after requesting complete copies
of her insurer’s EOB forms after the statute
of repose expired in June or July 2010. In
response to the request, an EOB form was
produced on July 1, 2010, showing that
Defendant, as an employee of Sandia OB/
GYN, saw Plaintiff on August 8, 2006.
Plaintiff ’s bank statements, which Plaintiff
had not reviewed until the EOB form was
produced, revealed the $30 transaction
payable to Defendant’s employer, Sandia
OB/GYN, in August 2006. At all times,
Plaintiff had used the checking account
and had access to her online bank statements. Plaintiff also gave a deposition on
June 3, 2010, after the statute of repose
expired, describing where Defendant’s office was located, but Plaintiff never went
to that location to ascertain Defendant’s
name. Thus, Plaintiff had ten and one-half
months from the date that she discovered
she had a malpractice claim against Defendant to learn of his name. However, it was
not until eleven months after the threeyear statute of repose expired that Plaintiff
discovered Defendant’s identity. And she
discovered it using information which was
available to Plaintiff from the time Plaintiff
first learned she had a malpractice claim
against Defendant.
{7} These facts notwithstanding, Plaintiff
asserts that her diligence in attempting to
learn of Defendant’s name “was thwarted
by a confusing medical record system that
prevented her from identifying a doctor
Advance Opinions
that for all practical purposes appeared
to be a Lovelace provider[,]” and Plaintiff admits that “her inadvertent mistake
was assuming that she was looking for a
Lovelace doctor.” Plaintiff ’s confusion was
understandable.
{8}At the pertinent time, Lovelace
Health System, Inc. (Lovelace), which
was previously called Lovelace Sandia
Health System, was a licensed healthcare
provider composed of several hospitals
and medical centers, and Plaintiff was
insured by Lovelace Health Plan. Plaintiff
originally went to the emergency room at
Lovelace Women’s Hospital, which was
part of Lovelace, and the pelvic ultrasound
was performed at Lovelace West Mesa
Medical Center, which was also part of
Lovelace. Plaintiff ’s original appointment
to discuss the ultrasound report was with
a doctor at Lovelace Women’s Hospital, but
it was cancelled, and when Plaintiff called
Lovelace Women’s Hospital to reschedule the appointment, Lovelace Women’s
Hospital provided her with Defendant’s
name. Defendant saw Plaintiff in an office
located in the Lovelace Women’s Hospital
Building. Defendant, however, was not
a Lovelace doctor. He was employed by
Sandia OB/GYN, a separate entity owned
and operated by Dr. Carl Conners, in the
Lovelace Women’s Hospital building.
{9} Plaintiff attempted to collect her medical records from Lovelace to identify the
doctors that treated her. She undertook
these efforts from September through
November 2008, while undergoing
treatment and recovery from the cancer.
Plaintiff sent eight letters requesting her
records from Lovelace Women’s Health,
Lovelace Westside Hospital, and Lovelace
Women’s Health/ABQ Health Partners.
Believing she visited the doctor only
one or two months after the ultrasound,
Plaintiff requested Lovelace Health Plan
EOB records for May, June, and July 2006,
but not August 2006. None of the records
reflected Plaintiff ’s August 8, 2006, visit
or the name of the doctor that examined
her.
{10} Plaintiff also called Lovelace Women’s Hospital and talked to an employee
about the missing record. The Lovelace
employee reviewed Plaintiff ’s records
and confirmed there was no record of
the August 8, 2006, visit. Plaintiff also described Dr. Berryman, and the employee
volunteered that it might be another doctor. The Lovelace employee checked that
doctor’s records, but there was no record
of Plaintiff ’s visit.
{11} Plaintiff ’s counsel, retained in December 2008, also proceeded to collect
Plaintiff ’s medical records from Lovelace
entities. Plaintiff ’s counsel sent requests
to Lovelace Westside OB/GYN, Lovelace
Women’s Hospital, Lovelace Westside
Hospital, and Lovelace Sandia Health
System physician billing and business
office in December 2008 and January
2009. Plaintiff ’s counsel also contacted
contractors that have records and billing
information directly related to Lovelace.
Plaintiff ’s counsel requested medical
charts and itemized billings from May 17,
2006, until February 4, 2011. None of the
documents received included Plaintiff ’s
August 8, 2006, visit with Dr. Berryman.
{12} Plaintiff filed her complaint on April
10, 2009, naming Lovelace, five doctors
employed by Lovelace, and “John Doe” as
defendants. “John Doe” was identified as
“a physician who [may have] provided care
to [Plaintiff] whose identity cannot be ascertained at this time[.]” Fourteen months
later in June 2010, Plaintiff subsequently
filed a discovery request for all her EOB
records from Lovelace Health Plan. Those
records, which Plaintiff received on July
1, 2010, disclosed Defendant’s name, and
Plaintiff filed an amended complaint on
July 9, 2010, naming Defendant and Sandia
OB/GYN as Defendants. Defendant did
not know of the litigation until July 16,
2010, when he was served.
{13} Defendant moved for summary
judgment, arguing that the three-year
statute of repose expired on August 8,
2009, barring Plaintiff ’s claim. The district
court denied the motion, ruling that the
three-year time bar “violates Plaintiff ’s
substantive due process rights under the
United States Constitution and New Mexico Constitution[.]” Following additional
discovery, Defendant filed a motion to
reconsider, which the district court denied.
{14} The parties then entered into a
stipulated conditional directed verdict,
which was approved by the district court.
Therein, the parties agreed and stipulated
that if the three-year statute of repose bars
Plaintiff ’s claims against Defendant, she
cannot recover, but if Plaintiff ’s claims
are not time-barred, Defendant is liable
to Plaintiff on her claims of medical malpractice. The parties further stipulated and
agreed to entry of a directed verdict against
Defendant in the amount of $700,000,
plus interest, subject to Defendant’s right
to appeal the district court order that the
three-year statute of repose violates Plaintiff ’s right to substantive due process. The
district court filed the stipulated judgment,
and Defendant appeals. See Kysar v. BP
Am. Prod. Co., 2012-NMCA-036, ¶ 17, 273
P.3d 867 (concluding that an appeal will lie
from a stipulated conditional judgment
when specific conditions are satisfied).
DISCUSSION
{15} The Medical Malpractice Act aims
“to promote the health and welfare of the
people of New Mexico by making available
professional liability insurance for health
care providers in New Mexico.” Section
41-5-2. One way in which the Act seeks
to accomplish this goal is by establishing a
“termination point” for medical malpractice claims. Cummings v. X-Ray Assocs. of
N.M., P.C., 1996-NMSC-035, ¶¶ 38-41, 121
N.M. 821, 918 P.2d 1321. That termination
point is set forth in the Act’s three-year
statute of repose, which states,
No claim for malpractice arising out of an act of malpractice
which occurred subsequent to
the effective date of the Medical
Malpractice Act may be brought
against a health care provider unless filed within three years after
the date that the act of malpractice occurred[.]
Section 41-5-13. The statute is an “occurrence” based rule, meaning the time
period for filing a lawsuit begins to run
at the time of the malpractice without
regard to when the underlying cause of
action accrues and without regard to
discovery of the injury or damages. Cummings, 1996-NMSC-035, ¶ 50; Garcia ex
rel. Garcia v. La Farge, 1995-NMSC-019,
¶ 14, 119 N.M. 532, 893 P.2d 428. See
Chavez v. Delgado, 2014-NMCA-014,
¶¶ 5, 11, 316 P.3d 907 (concluding that
the statutory “act of malpractice” for
negligently prescribing medication is the
discrete act of prescribing medication to
the patient, not the date of injury or the
last day the medication was taken), cert.
denied, 2013-NMCERT-012, 321 P.3d 126;
Meza v. Topalovski, 2012-NMCA-002, ¶
19, 268 P.3d 1284 (stating that Cummings
has interpreted Section 41-5-13 as an
occurrence-based statute of repose rather
than a discovery-based statute of limitations, and that “[t]he limitations period
runs from the date of the occurrence, as
opposed to the date of discovery,” and
terminates the right of any action after the
three years has elapsed even if no injury
has manifested itself). Unlike a statute of
limitation, which does not begin to run
until the patient discovers, or reasonably
should discover, the malpractice, “a statute
25
Advance Opinions
of repose terminates the right to any action after a specific time has elapsed, even
though no injury has yet manifested itself.”
Cummings, 1996-NMSC-035, ¶¶ 47, 50.
The statute of repose “put[s] an end to
prospective liability for wrongful acts that,
after the passage of a period of time, have
yet to give rise to a justiciable claim.” La
Farge, 1995-NMSC-019, ¶ 14.
{16} The Legislature may impose a
statutory time deadline for commencing
a cause of action as long as a reasonable
time is provided for commencing suit. La
Farge, 1995-NMSC-019, ¶ 33. However,
if a plaintiff is left with an unconstitutionally short period of time to file suit within
the period of the statute of repose, due
process is violated. Id. ¶ 26. The question
presented in this case is whether Plaintiff
had a reasonable period of time, consistent
with due process, within which to bring
her suit against Defendant.
Standard of Review
{17} Whether Plaintiff was deprived of
due process presents a question which
we review de novo. See Martinez v. Pub.
Emps. Ret. Ass’n, 2012-NMCA-096, ¶ 27,
286 P.3d 613; Los Chavez Cmty. Ass’n v.
Valencia Cnty., 2012-NMCA-044, ¶ 12, 277
P.3d 475. In addition, we review de novo
a district court order granting or denying
a motion for summary judgment. Chavez,
2014-NMCA-014, ¶ 4.
Analysis
{18} We begin with Terry v. New Mexico
State Highway Commission, 1982-NMSC047, ¶ 9, 98 N.M. 119, 645 P.2d 1375,
abrogated on other grounds by Coleman
v. United Engineers & Constructors, Inc.,
1994-NMSC-074, 118 N.M. 47, 878 P.2d
996, in which the cause of action accrued
three months before the applicable statute
of limitations expired, and the lawsuit was
filed after the statute of limitations expired.
Our Supreme Court declared that it was
required to decide “whether a cause of
action, once accrued, may be barred by
a period so short that it in effect prevents
an injured party from obtaining relief.”
Terry, 1982-NMSC-047, ¶ 10. Because it
was persuaded that “fundamental considerations of due process” require that
the limitation period not be applied to
actions occurring within, but close to the
end of the limitations period, id. ¶ 13, the
Court held that an unreasonably short
limitations period denies due process. Id.
¶ 1. While the Court concluded that three
months was unreasonable, id. ¶¶ 1, 9, it
did not provide any express guidelines
for determining what will constitute
26
an “unreasonably short” period of time
to result in a violation of due process.
Nevertheless, in looking to the question
that the Court said it was deciding, we
conclude that to be “unreasonably short,”
the period of time must be “so short that
it in effect prevents an injured party from
obtaining relief.” Id. ¶¶ 1, 10.
{19} Terry was followed and applied to
the statute of repose in La Farge, 1995NMSC-019, ¶ 14. Following Terry, our
Supreme Court held that “a statute of
repose that allows an unreasonably short
period of time within which to bring an
accrued cause of action violates the Due
Process Clause of the New Mexico Constitution.” La Farge, 1995-NMSC-019, ¶ 36.
The Court concluded that, as applied to
the plaintiff ’s claim, the statute of repose
violated due process because, when the
plaintiff first learned that he had a medical malpractice claim against the doctor,
only eighty-five days remained before the
limitations period would expire. Id. ¶ 37.
The Court, however, did not identify what
criteria it used to conclude that the eightyfive day time period was “unreasonably
short.”
{20}In Cummings, 1996-NMSC-035, ¶
57, the plaintiff discovered the malpractice
about eighteen months before the statute
of repose on her claim expired, and more
than two years later, she filed her lawsuit.
Recognizing La Farge as one of the “few
exceptions” to the statute of repose, Cummings concluded that eighteen months
was not too short a period of time, and
held that the plaintiff lost her malpractice
claim through her own lack of diligence.
Cummings, 1996-NMSC-035, ¶¶ 55, 57.
{21} Some guidance on how to apply the
La Farge/Cummings due process exception
to the statute of repose was subsequently
provided in Tomlinson v. George, 2005NMSC-020, ¶¶ 20-27, 138 N.M. 34, 116
P.3d 105. In Tomlinson, when the plaintiff
discovered she had a potential medical
malpractice claim against the defendant,
she still had two years and eight months
within which to file suit. Id. ¶ 2. After noting its holding in La Farge that eighty-five
days was a constitionally unreasonably
short period of time, and its holding in
Cummings that one and one-half years
was a constitutionally reasonable period
of time, our Supreme Court concluded
in Tomlinson that two years and eight
months was a constitutionally reasonable
period of time to bring suit. Tomlinson,
2005-NMSC-020, ¶¶ 23-24. The Court
reiterated that if a plaintiff discovers a
potential medical malpractice claim within
the statutory period of repose, but has an
“unreasonably short period of time” within
which to file her suit, she “may argue to
the district court that Section 41-5-13 is
unconstitutional as applied under the La
Farge/Cummings due process analysis.”
Tomlinson, 2005-NMSC-020, ¶ 27. The
Court added:
We conclude that this flexibility provides district courts with
some level of discretion to relax
Section 41-5-13’s strict three-year
occurrence rule in unusual cases
involving exceptional circumstances as a matter of fairness
while upholding the legislative
protection for physicians and assuring New Mexicans access to
health care.
Tomlinson, 2005-NMSC-020, ¶ 27.
{22} Thus, we conclude from the decided
cases that there must be “unusual cases
involving exceptional circumstances” resulting in an unusually short period of
time within which to file suit before the La
Farge/Cummings due process exception to
the statute of repose applies. The period of
time must be so short that the plaintiff is
in effect prevented from being able to file
suit.
{23} In this case, when Plaintiff learned
of her medical malpractice claim against
Defendant, ten and one-half months remained under the statute of repose to sue
Defendant. This is longer than the three
months in Terry and the eighty-five days
in La Farge, but shorter than the eighteen
months in Cummings and the two years
and eight months in Tomlinson, so we
have no clear guidance based solely on
the amount of time. Nevertheless, during the entire ten and one-half months
period of time, the means for discovering Defendant’s name were available and
within Plaintiff ’s control. Specifically,
these were the EOB forms maintained
by Plaintiff ’s own insurer and her own
online banking statements. In addition,
Plaintiff knew where Defendant’s office
was in the Lovelace Women’s Hospital
building, but she never went to the office
to learn his name. Although Defendant
no longer worked there, Sandia OB/GYN
was still operating and maintained Plaintiff ’s records. We acknowledge Plaintiff ’s
initial assumption that she was seeking
a Lovelace doctor, but the Lovelace records she obtained failed to include the
visit to Defendant on August 8, 2006, and
Plaintiff knew that as early as November
Advance Opinions
2008. Moreover, the fact that Plaintiff was
initially confused about the month she saw
Defendant does not excuse her asking for
complete copies of her insurer’s EOB forms
for 2006.
{24} We cannot conclude, under the facts
presented to us, that this case falls within
the narrow La Farge/Cummings due process exception to the statute of repose. We
therefore conclude that ten and one-half
months was a constitutionally reasonable
amount of time for Plaintiff to bring her
medical malpractice suit against Defendant, and having failed to do so, Plaintiff ’s
claims against Defendant are barred by
Section 41-5-13. The district court having
concluded otherwise, we reverse.
CONCLUSION
{25} The order of the district court is reversed and the case is remanded for further
proceedings consistent with this Opinion.
{26} IT IS SO ORDERED.
MICHAEL E. VIGIL, Chief Judge
I CONCUR:
RODERICK T. KENNEDY, Judge
(dissenting).
ZAMORA, J., dissenting.
{27} I agree with the Majority, that in
New Mexico due process precludes the application of Section 41-5-13’s strict threeyear occurrence rule where malpractice
is discovered so close to the expiration
of the limitations period, as to effectively
prevent the plaintiff from bringing a cause
of action. Tomlinson, 2005-NMSC-020,
¶ 21 (“A statute of repose that allows an
unreasonably short period of time within
which to bring an accrued cause of action
violates the Due Process Clause of the New
Mexico Constitution.” (alteration, internal
quotation marks, and citation omitted));
see Cummings, 1996-NMSC-035, ¶ 55;
La Farge, 1995-NMSC-019, ¶ 36; Terry,
1982-NMSC-047, ¶ 1. I also agree that
due process will only preclude the application of the three-year occurrence rule
in “unusual cases involving exceptional
circumstances.” Tomlinson, 2005-NMSC020, ¶ 27. However, I do not agree that in
this case Plaintiff had a constitutionally
reasonable amount of time to pursue her
cause of action. For that reason, I respectfully dissent.
{28} Addressing this issue, our Supreme
Court has determined that eighty-five days
is a constitutionally unreasonable time
within which to file a claim while one and
one-half years is constitutionally reason-
able. Id. As the Majority points out, the
question is open as to whether a period of
time between eighty-five days and one and
one-half years is constitutionally reasonable. While New Mexico precedent does
not provide a specific test to determine
whether a plaintiff who discovers a potential claim within the statutory period is left
with a constitutionally reasonable period
of time to file the claim, in my view, the
Court’s analyses in Terry and Cummings
are instructive.
{29} In Terry, the court held that the
application of a statute of repose where
the plaintiff ’s cause of action accrued
approximately three months before
the limitations period was set to expire
violated due process. Terry, 1982-NMSC047, ¶ 1. In that case, the court based
its determination of a constitutionally
unreasonable time frame on its review of
legislatively created periods of limitation.
See Id. ¶¶ 16-17. The court noted that, for
causes of action such as the one in that
case, the Legislature had set the period
of limitations at three years. Id. ¶ 17. The
court also recognized that the Legislature
had not specified any period of limitations
that was less than one year. Id. The court
concluded that “[t]here is no New Mexico
limitations period which would give an
aggrieved party less than three months to
pursue a claim for personal injury, as [the
statute of repose] would do under these
facts.” Id. ¶ 16.
{30}In Cummings, the court acknowledged several exceptions to the strict
application of the three-year occurrence
rule under Section 41-5-13, including the
exception that applied where late discovery
of malpractice leaves an unconstitutionally
short period of time to pursue a cause of
action. Cummings, 1996-NMSC-035, ¶¶
55-57. The court concluded that none of
the exceptions applied because despite the
fact that the plaintiff had eighteen months
to pursue her claim, she instead “sat on her
rights and did not file any claim for more
than two years” after she discovered the
malpractice. Id. ¶ 57. The court held that
the plaintiff “lost her medical malpractice
claim through her own lack of diligence.”
{31} In the present case, Plaintiff argues
that using the Terry approach, the ten and
one-half months she had to file her claim
prior to the expiration of the limitations
period, was constitutionally unreasonable. Plaintiff compares the ten and onehalf month time frame to New Mexico’s
legislatively created statutes of limitation,
which all provide periods of limitation
greater than one year. Defendant, on the
other hand, argues that under the Cummings approach, Plaintiff ’s claim is time
barred as a result of her lack of diligence.
The Majority does not address either of
these arguments or approaches. Instead,
the Majority concludes, in hindsight, that
this case does not fall within the narrow La
Farge/Cummings due process exception to
the statute, because Plaintiff should have
known Defendant was not a Lovelace
doctor, and Plaintiff could have found
Defendant’s name earlier by looking on her
EOB, her bank statements, or by returning
to Defendant’s office.
{32} In my view, the Majority fails to
consider Plaintiff ’s diligence in pursuing her claim, especially in light of the
entirety of her circumstances. Plaintiff
was living in Wyoming on September 22,
2008, when she learned that Defendant
had misdiagnosed her. Less than three
weeks later, On October 15, 2008, Plaintiff had been diagnosed with widespread
ovarian cancer and underwent extensive
surgery to remove her uterus and ovaries.
Nonetheless, between October 27, 2008
and November 3, 2008, Plaintiff sent seven
medical record requests to Lovelace Hospital and Lovelace contractors attempting
to understand what had happened and to
obtain her entire medical file, which would
include the identity of Defendant. Plaintiff
called and was told that there was no record of her visit with Defendant. Plaintiff
retained counsel in December 2008, who
also requested Plaintiff ’s medical records,
sent several follow up requests, and wrote
to Lovelace contractors attempting to obtain information related to Plaintiff ’s care.
{33} Reviewing Plaintiff ’s medical records, Plaintiff ’s counsel discovered that
Plaintiff had been assigned three different
medical record numbers. Plaintiff ’s counsel went to Lovelace Women’s Hospital,
Lovelace Women’s Clinic, and Lovelace
Westside Hospital, and obtained copies
of Plaintiff ’s medical records, which were
compared against the contents of Plaintiff ’s original chart. Lovelace claimed it
had made all Plaintiff ’s records available;
however, additional records were later
discovered at another Lovelace location.
Later still, records were located in the film
jacket of Plaintiff ’s May 2006 ultrasound.
{34} The Majority asserts that Plaintiff
should have known that Defendant was
not a Lovelace doctor based on the fact
that there was nothing in the response to
Plaintiff ’s initial records requests related
to her visit with Defendant. In light of
27
Advance Opinions
the disorganization of Plaintiff ’s Lovelace
records, I do not believe this is a fair assumption. The Majority also assumes that
Plaintiff could have discovered Defendant’s identity by reviewing an EOB from
August 2006, which the Majority insists
was “in her control.” However, this is not
supported by the record. The EOB for the
August 2006 visit was mailed to Plaintiff
at an address where she no longer received
mail. Even though Plaintiff had filled out
a change of address form she testified that
she had not received the EOB. Plaintiff requested and received EOBs from Lovelace
Health Plan for May, June, and July, but not
August 2006. Plaintiff did not actually have
the August EOB that identified Defendant
until July 2010.
{35} Additionally, the Majority assumes
Plaintiff could have discovered Defendant’s
identity by reviewing her bank statements
that showed the co-pay for her visit to
Defendant’s office. However, the bank statements did not reveal Defendant’s name. The
entry showed a payment to “Sandia OBGYN Assoc.” At that time, Lovelace used the
name “Lovelace Sandia Health System.” It is
not necessarily fair to assume that Plaintiff
would have reviewed her bank statement
two years later and deduce that Sandia OBGYN was an entirely separate entity from
“Lovelace Sandia Health System.”
28
{36} Finally, the Majority assumes that
Plaintiff could have returned to the office
where she had initially seen Defendant and
identified him there. However, Defendant
did not practice in that office after February 2007 and there is no indication in
the record that Plaintiff would have been
able to retrieve any records pertaining to
Defendant’s treatment if she had gone to
the office. Moreover, Plaintiff was in New
York recovering for eight months after her
surgery, and, thereafter, she was traveling
back and forth from Wyoming to New
York as she continued her follow-up care.
It is not reasonable to assume that Plaintiff
could have physically gone to the office to
track Defendant down.
{37}Under La Farge a plaintiff who discovers malpractice “during the statutory
period as it runs from the occurrence of
the negligent act must have a reasonable
period of time from the discovery to file
his or her claim.” Tomlinson, 2005-NMSC020, ¶ 23 (emphasis added). This requirement is rooted in principles of fairness,
which are inherent in the Due Process
Clauses of the United States and New
Mexico Constitutions. La Farge, 1995NMSC-019, ¶ 36.
{38} In my view, it is these principles of
fairness that bring this case within the La
Farge/Cummings exception. Plaintiff dili-
gently pursued her claim while she faced
a grave diagnosis, a serious surgery, an
eight-month recovery, and years of continued treatment. While it is unfortunate that
Plaintiff did not obtain the August 2006
EOB sooner, she certainly did not sit on
her rights. She began investigation of her
treatment history immediately after the
accrual of her claim. She obtained counsel
within three months of the accrual of her
claim. She continued her efforts to identify
Defendant after the filing of the complaint
and amended her complaint three days
after finally learning Defendant’s name.
{39} For these reasons I believe that ten
and one-half months was an unreasonably short time for Plaintiff to name Defendant in her complaint. I would affirm
the district court’s decision. I also believe
it is worth noting that in both Terry and
La Farge, where the court found that the
plaintiffs had a constitutionally unreasonable time to pursue their claims, the court
applied the three-year limitation period
that would have been applicable if the
statute of repose had not been enacted.
See Terry, 1982-NMSC-047, ¶ 17; see also
La Farge, 1995-NMSC-019, ¶ 37.
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Melendres
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Andrews
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its
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www.montand.com
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learn
more
about
the
American
College
of
Trial
Lawyers,
visit
www.actl.com
and
is
currently
the
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Andrews
Litigation
Department.
To learn more about Montgomery & Andrews and its attorneys, visit www.montand.com
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the American
College
ofits
Trial
Lawyers,visit
visitwww.montand.com
www.actl.com
To learn
moremore
aboutabout
Montgomery
& Andrews
and
attorneys,
To
learn
more
about
the
American
College
of
Trial
Lawyers,
visit
www.actl.com
To learn
moremore
aboutabout
Montgomery
& Andrews
and
its
attorneys,
visit
www.montand.com
To
learn
the
American
College
of
Trial
Lawyers,
visit
www.actl.com
To learn
moremore
aboutabout
Montgomery
& Andrews
and
attorneys,
To learn
the American
College
ofits
Trial
Lawyers,visit
visitwww.montand.com
www.actl.com
Sun Avenue
NE, Suite
410
Paseothe
de Peralta
To learn more325
about
American College100
of Trial
Lawyers,
visit www.actl.com
100Albuquerque,
Sun Avenue NE,
325
Paseo
de Peralta
NMSuite
87109410
Santa
Fe, NM
87501
100Albuquerque,
Sun505-884-4200
Avenue NE,
325
Paseo
de Peralta
NMSuite
87109410
Santa
Fe, NM
87501
505-982-3873
100Albuquerque,
Sun505-884-4200
Avenue NE,
325
Paseo
de Peralta
NMSuite
87109410
Santa
Fe, NM
87501
505-982-3873
100Albuquerque,
Sun505-884-4200
Avenue NE,
325
Paseo
de Peralta
NMSuite
87109410
Santa
Fe, NM
87501
505-982-3873
100Albuquerque,
Sun505-884-4200
Avenue NE,
325
Paseo
de Peralta
NMSuite
87109410
Santa
Fe, NM
87501
505-982-3873
www.montand.com
Albuquerque,
NM 87109
Santa
Fe, NM 87501
505-884-4200
505-982-3873
www.montand.com
505-884-4200
505-982-3873
www.montand.com
www.montand.com
www.montand.com
www.montand.com
Bridge the Gap
Mentorship Program
Mentoring
Has Its
Rewards
For more information and to apply,
go to www.nmbar.org
To learn more, contact Jill Yeagley
505-797-6003, or email
[email protected]
NEW MEXICO LAWYERS and JUDGES ASSISTANCE PROGRAM (JLAP)
Through JLAP, I’ve been given the freedom to become
the person that I’ve always wanted to be. This
program saved my life and my family.
–SM
Thanks to JLAP, I am happier, healthier and stronger
than I have ever been in my entire life!
–KA
Free, confidential assistance to help identify
and address problems with alcohol, drugs,
depression, and other mental health issues.
Help and support are only a phone call away.
Confidential assistance – 24 hours every day.
Judges call 888-502-1289
Lawyers and law students call 505-228-1948 or 800-860-4914
www.nmbar.org
30
Valuation and Consulting, LLC
Economic Damages Consulting
‐ Business Damages
‐ Personal Injury/Wrongful Death
Litigation Support/Expert Witness
Letherer Insurance
Consultants, Inc.
Representing 24 Insurance Companies
Business Valuation Services
John R. Battle, CPA, CVA, CM&AA
575.921.7578
[email protected]
A Civilized Approach to
Civil Mediation
We help parties focus on
prioritizing their interests
and options
Don Letherer
Brian Letherer
We solve Professional Liability Insurance Problems
Karen S. Mendenhall
We Shop, You Save.
New programs for small firms.
[email protected]
[email protected] • [email protected]
505.433.4266 • www.licnm.com
The Mendenhall Firm, P.C.
(505) 243-3357
David Stotts
Attorney at Law
Business Litigation
Real Estate Litigation
242-1933
Pen & Pad
Fine Pens, Paper, Inks, Refills, Stationery, Leather ...
8236 Menaul Blvd NE 293-1144
(Hoffmantown Shopping Center)
No need for another associate
Bespoke lawyering for a new millennium
Walter M. Drew
THE BEZPALKO LAW FIRM
Legal Research and Writing
Construc)on Defects Expert
(505) 341-9353
www.bezpalkolawfirm.com
40 years of experience
Construc)on-‐quality disputes
between owners/contractors/
architects, slip and fall, building
inspec)ons, code compliance,
cost to repair, standard of care
(505) 982-‐9797
[email protected]
Visit the State Bar of
New Mexico’s website
(505) 988-2826 • [email protected]
www.nmbar.org
Classified
Positions
Family Law Attorney
Minimum 3 years experience. Must be motivated self-starter. Performance based pay.
Send resume, cover letter, writing sample to
[email protected].
Request for Proposals
General Counsel Services
Albuquerque Metropolitan Arroyo
Flood Control Authority (AMAFCA)
The Albuquerque Metropolitan Arroyo Flood
Control Authority (AMAFCA) invites law
firms and attorneys with offices located in
the Greater Albuquerque area, to submit
proposals in accordance with the specifications contained in the Request for Proposals
("RFP"). Services will be required in the
following areas of law: Area of Law: Real
Estate and Condemnation; Contracts and
Agreements; Environmental / Water Law;
Inter-governmental Affairs; Personnel and
Administration; Construction Law. It is also
estimated that about 30-40 hours per month
are required to perform these services. A copy
of the Scope of Services with the AMAFCAspecific Campaign Contribution Disclosure
Form, and complete RFP can be obtained
from the AMAFCA office located at 2600
Prospect NE, Albuquerque, NM 87107, or
by email via the link under Ads & Notices at
www.amafca.org. Proposals must be submitted to AMAFCA in six (6) copies by 2:00 p.m.
(local time) on December 31, 2015, and must
include the AMAFCA-specific Campaign
Contribution Disclosure Form. AMAFCA
reserves the right to reject any or all proposals
and to waive any informality or technicality
in any proposal. Dated: October 22, 2015 /s/
Jerry M. Lovato, P.E., Executive Engineer,
Albuquerque Metropolitan Arroyo Flood
Control Authority. State Bar: November 11,
18, and 25, 2015
Las Cruces Attorney
Holt Mynatt Martínez, P.C., an AV-rated law
firm in Las Cruces, New Mexico is seeking an
associate attorney with 3-5 years of experience to join our team. Duties would include
providing legal analysis and advice, preparing
court pleadings and filings, performing legal
research, conducting pretrial discovery, preparing for and attending administrative and
judicial hearings, civil jury trials and appeals.
The firm’s practice areas include insurance
defense, civil rights defense, commercial
litigation, real property, contracts, and governmental law. Successful candidates will
have strong organizational and writing skills,
exceptional communication skills, and the
ability to interact and develop collaborative
relationships. Salary commensurate with experience, and benefits. Please send your cover
letter, resume, law school transcript, writing
sample, and references to [email protected].
32
Associate Attorney
Small medical malpractice defense firm seeks
associate attorney with 3-10 years' experience,
preferably in insurance defense and/or medical
malpractice. Salary commensurate with experience. Benefits package included. Please send
resume and cover letter to the hiring manager
at Brown & Gay, P.C., 3810 Osuna Road NE,
Ste. 1, Albuquerque, NM 87109.
CYFD Attorney’s
The Children, Youth and Families Department is seeking to fill two vacant Children’s
Court Attorney Senior Positions. Salary
range is $39-$69K annually, depending on
experience and qualifications. The attorney
will represent the department in abuse/
neglect and termination proceedings and
related matters. The ideal candidates will have
experience in the practice of law totaling at
least three years and New Mexico licensure is
required. The first Children’s Court Attorney
Senior position is located in Alamogordo,
New Mexico, and also covers Ruidoso. The
second Children’s Court Attorney Senior
position will be located in Silver City, New
Mexico. Benefits include medical, dental, vision, paid vacation, and a retirement package.
Please contact the following for information
on how to apply and to ascertain the closing date for the position. Lynne Jessen (575)
373-6403 or [email protected]. The
state of New Mexico is an EOE. To apply for
these positions go to www.state.nm.us/spo/
and click on JOBS, then click on Apply for a
Job Online.
Attorney
Established law-firm seeks attorney with experience in local government law, contracts,
and administrative proceedings to join fastpaced practice. Knowledge of environmental
law and water rights is also essential. Experience with economic development issues and/
or ad valorem taxes helpful. Minimum of 5
years of experience required. Must be willing
to regularly travel within New Mexico. Excellent writing skills and people skills required.
Salary based on experience. Competitive
benefits package. Interested applicants should
submit their letter of interest and resume to
[email protected].
Associate Attorney
Ray McChristian & Jeans, P.C., an insurance
defense firm, is seeking a hard-working associate attorney with 5 years of experience in
medical malpractice, insurance defense, insurance law, and/or civil litigation. Excellent
writing and communication skills required.
Competitive salary, benefits, and a positive
working environment provided. Please submit resume, writing sample and transcripts
to [email protected].
Associate Attorney
Established Rio Rancho law firm is seeking an
associate attorney with three to seven years
of experience to join our firm. Our practice
areas include real estate, corporate/business
law, and trust/will/probate. Real estate experience is strongly preferred. Compensation
is DOE. Please submit a resume, three references and writing sample to P. O. Box 15698,
Rio Rancho, NM 87174 or via email to ms@
lsplegal.com. All replies kept confidential.
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 Dianna
Luce, District Attorney, 301 N. Dalmont
Street, Hobbs , NM 88240-8335 or e-mail to
[email protected].
Associate Attorney
Scott & Kienzle, P.A. seeks associate attorney
with 0 to 5 years of experience. Practice areas
include foreclosure, litigation, collections,
bankruptcy, insurance, and Indian law. Responsibilities include opening a file through
pretrial, arbitration, trial, and appeal. Please
email a letter of interest, salary requirements, and résumé to Paul Kienzle at paul@
kienzlelaw.com.
Lawer Advanced
Provide comprehensive legal services to the
NM Division of Vocational Rehabilitation
(NMDVR). The position serves as the Agency
Attorney and provides interpretation and
guidance to ensure that the NMDVR is in
compliance with all applicable federal and
state laws and regulations. Licensed as an attorney by the Supreme Court of New Mexico
or qualified to apply for limited practice
license, which requires graduation from an
accredited school of law, licensure (in good
standing) in another state and sitting for the
next eligible State Bar exam. Experience in
Labor Law and Americans with Disabilities
Act preferable. This position is a Pay Band
80. To apply, please visit http://www.spo.
state.nm.us/State_Employment.aspx. For
additional information on this position please
contact NMDVR General Counsel, Rosa
Lima at (505) 954-8519.
Director
The New Mexico Center on Law and Poverty
is looking for a new director. The New Mexico
Center is a well-established, financially sound
organization with a rich history of successful
legal impact work. We are seeking a highly
competent leader to join the organization
as Deputy Director with the intention of
becoming the Executive Director within two
months to a year. Job duties include assisting
in leading the organization, fundraising,
managing finances and operations, liaising with the board, taking an active role in
advocacy and preparing to step into the ED
role. The ideal candidate is a proven leader,
having been successful in leading advocacy
campaigns, non-profit management, fundraising, working with public officials and
media, and having a background in poverty
or civil rights advocacy. History in NM and
f luency in Spanish preferred. Reasonable
non-profit salary. Good benefits. EEOE. To
apply, send letter of interest and resume to
[email protected].
Attorney
Little, Bradley & Nesbitt, PA, is seeking
attorney to handle residential foreclosure
cases, including litigation. No billable hours
requirement. Prior foreclosure, real estate
title, bankruptcy, collection &/or litigation
experience preferred. Send cover letter, resume, salary requirements & references to
[email protected], fax to 254-4722 or
mail to PO Box 3509, Alb 87190.
Two Staff Attorneys
The Albuquerque-based Senior Citizens' Law
Office, Inc. seeks two staff attorneys: a full
time general staff attorney; and a part-time
estate planning attorney. Full descriptions of
the positions and the application process are
posted on SCLO's home page under "News"
at www.sclonm.org.
Assistant District Attorney
The Second Judicial District Attorney’s office
in Bernalillo County is looking for both entrylevel and experienced prosecutors. Qualified
applicants may be considered for positions
in Violent Crimes, Crimes Against Children,
Metropolitan Court, and other divisions in
the office. Salary and job assignments will
be based upon experience and the District
Attorney Personnel and Compensation Plan.
If interested please mail/fax/e-mail a resume
and letter of interest to Jeff Peters, Human
Resources Director, District Attorney’s Office,
520 Lomas Blvd., N.W., Albuquerque, NM
87102. Fax: 505-241-1306. E-mail: jpeters@
da2nd.state.nm.us., or go to www.2nd.nmdas.
com. Resumes must be received no later than
5:00 pm on Friday November 27, 2015 to be
considered.
Associate Attorney
Bleus & Associates, LLC is presently seeking
to fill (2) two Associate Attorney Positions
for its new Uptown Albuquerque Office. (1)
Senior Associate with 10+ years of experience
and (1) Junior Associate with 0-9 years experience sought. Candidates should possess
Civil Litigation/Personal Injury experience
and desire to zealously advocate for Plaintiffs.
Trial experience preferred. Salary D.O.E.
Please submit Resume's to Hiring Partner,
[email protected]. All inquiries
shall remain confidential.
Associate Attorney
Gluth Law, LLC is currently seeking a fulltime associate attorney to handle estate planning, probate AND trust matters. Candidates
must have excellent communication skills
and enjoy working with people in a fast-paced
environment. Candidates must be licensed
to practice in the state of New Mexico and
current on all CLE requirements. Salary is
commensurate with experience and qualifications. Please send resume to Gluth Law,
LLC, 2455 E. Missouri, Ste. A, Las Cruces,
New Mexico 88001, fax to (575) 556-8446 or
email to [email protected]
Paralegal Wanted
Plaintiff’s personal injury law firm in Los
Lunas seeks paralegal. Successful candidate
must be professional, motivated, organized,
energetic and capable of multi-tasking in a
fast-paced environment. Excellent written
and oral communication skills are a must.
Will consider legal assistant with excellent
potential and motivation to become a paralegal. Competitive salary and benefits offered.
All responses kept strictly confidential. Please
send your cover letter, resume and references
to Office Manager, PO Box 2416, Los Lunas,
NM 87031.
Customer Service/Facilities Assistant
The State Bar of New Mexico seeks a Customer Service/Facilities Assistant to direct
callers, greet visitors, handle meeting room
reservations, set up meeting rooms, process
billing for meeting space, assist with light catering, AV and facilities management; excellent written and verbal skills and knowledge
of Outlook, Excel and PowerPoint required;
Spanish proficiency a plus. Compensation
$12-$13/hour plus benefits. Email cover letter
and resume to [email protected], EOE.
Paralegal & Legal Assistant Operational (NMDOT)
The NMDOT seeks to fill a Paralegal & Legal
Assistant – Operational position. The position
provides assistance to Office of General Counsel attorneys and will conduct legal research,
investigate facts and prepare legal documents;
assist with employment, personnel, contracts
and tort matters, including litigation, discovery
and hearing preparation; will have primary
responsibility for preparation of wage withholding and garnishment files, pleadings and communications with creditors, debtors and other
state and federal agencies. Direct experience
drafting and preparing legal correspondence
and pleadings, conducting legal research, maintaining a case management/tracking system and
in providing support in employment, torts, civil
rights or governmental entity defense. ProLaw
experience is highly desirable. Candidate is
required to become & / or maintain a current
New Mexico Notary Public Commission.
The minimum qualifications for this position
require an Associate’s Degree in Paralegal
Studies and two (2) years of work experience
drafting and preparing legal correspondence
and pleadings, conducting legal research and
maintaining a case management / tracking
system. A combination of education from an
accredited college or university in a related field
and direct experience in this occupation totaling four (4) years may substitute for the required
minimum qualifications. Position is a Pay Band
55, hourly salary range from $12.61 to $21.95,
depending on qualifications and experience,
with all state benefits to apply. Overnight travel
throughout the state is occasionally required.
A valid New Mexico driver’s license must be
maintained at all times during employment.
Working conditions: Primarily in an office
setting requiring extensive personal computer
and phone use, with occasional high pressure
situations. Applicants must apply through the
State Personnel Office: http:/www.state.nm.us/
spo by the closing date of December 2, 2015. The
New Mexico Department of Transportation is
an equal opportunity employer.
Legal Assistant
Seeking professional, motivated, organized,
highly skilled individual with great attention
to detail and ability to multitask for position in busy, nonsmoking office. Excellent
computer and organizational skills required.
Bachelor’s degree or two years legal assistance
experience required. Please email resume to
[email protected].
Paralegal and Legal Assistant
Advanced
New Mexico State Land Office is accepting
applications for the position of Paralegal.
Strong work ethic and organizational skills
are a must. Salary competitive and commensurate with experience and qualifications. Please apply at www.spo.state.nm.us
Ref#1234
Paralegal
Busy personal injury firm seeks paralegal
with experience in personal injury litigation.
Ideal candidate must possess excellent communication, grammar and organizational
skills. Must be professional, self-motivated
and a team player who can multi-task. Salary
depends on experience. Firm offers benefits.
Fax resumes to (505) 242-3322 or email to:
[email protected]
Legal Secretary/Assistant
Well established civil litigation firm seeking
Legal Secretary/Assistant with minimum
3- 5 years’ experience, including knowledge
of local court rules and filing procedures.
Excellent clerical, organizational, computer &
word processing skills required. Fast-paced,
friendly environment. Benefits. If you are
highly skilled, pay attention to detail & enjoy
working with a team, email resume to: Kay@
OnSiteHiring.com
Paralegal
Litigation paralegal with background in
large volume document control/management, trial experience, and familiar with
use of computerized databases. This is an
opportunity for a highly motivated, task &
detail-oriented professional to work for an
established, well-respected downtown law
firm. Competitive benefits. Email resume to:
[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.
Uptown Square Prime Office Space
Available
1474SF and 2324SF professional office space.
High quality improvements can be modified
or developed to Tenants specification. Great
visibility and access. Convenient access
to I-40. On site amenities include Bank of
America and companion restaurants. Surrounded by nearby shopping, ample parking
and Full Service Lease. Call John Whisenant
or Ron Nelson (505) 883-9662 for more information.
Professional Office Closing
For Sale: All Equipment and
Furnishings
Location (Journal Center) or furniture/
equipment only. Available now, or can hold
until December. Desks, filing cabinets, waiting room furniture, copier/scanner/printer/
fax, phone system, refrigerator, bookshelves,
artwork, office supplies, medical equipment,
etc. $5,000 OBO. Call (505) 249-7715 to view
or discuss pricing.
Miscellaneous
Will or Trust
If you have any information about a will
or trust created for Sharan Martinez, also
known as Sharan Whitaker Martinez, in the
Roswell or Clovis area, please contact Francesca J. MacDowell, PO Box 328, Placitas,
NM 87043, 505.404.8859, macdowelllaw@
gmail.com.
Beat the h!
Rus
Holiday
Positions Wanted
Are You Looking for a FT
Legal Assistant/Secretary?
7 years experience, Personal Injury or Insurance Defense, Gen./Civil Litigation, ONLY.
Professional. Transcription, Proofreading/
Formatting, Organized, Attn. to Detail, Efiling in Odyssey-CM/ECF, Cust. Svc. Exp.,
Basic Pleadings, Discovery Prep., Calendaring, File Maintenance,MSWord, MS Outlook,
Excel. Please contact LegalAssistant0425@
yahoo.com for Resume, Salary Expectations
and References.
Services
For Sale
Office Space
Holiday
Advertising Schedule
Due to holiday closures, the following advertising submissions
for the Bar Bulletin will apply:
Dec. 30, 2015:
Advertising submissions due Dec. 7, 2015
Orthopedic Surgeon
Orthopedic Surgeon available for case review,
opinions, exams. Rates quoted per case. Send
inquiries to: [email protected]
Jan. 6, 2016 issue:
Advertising submissions due Dec. 9, 2015
For more advertising information, contact:
Marcia C. Ulibarri at 505-797-6058 or email [email protected]
34
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DIFFERENT.
HEALTH INSURANCE.
Affordable health plans
for all New Mexicans.
Now you can offer your employees affordable health insurance designed to give
them the care they need to stay healthy. For refreshingly simple, really honest
health insurance, connect with us at mynmhc.org.
myNMHC.org
Simple, honest, affordable health insurance.
NMHC0226-0914
New Mexico Compilation Commission
Official Legal Publisher for State of New Mexico
www.nmcompcomm.us
Get It Right:
Use Official Laws!
2.0 G
Credit
Hours
FREE
Presented by New Mexico Compilation Commission
December 15, 2015, 9:30 a.m. – Noon
State Bar of New Mexico, Auditorium
5121 Masthead NE, Albuquerque, NM
9:00 a.m.
Check In/ Registration
9:30 a.m.
Welcome And Introductions
Brenda Castello, Director / CFO, New Mexico Compilation Commission
9:35 a.m.
OfficialPositionoftheSupremeCourtofNewMexico
Justice Edward L. Chávez
10:00 a.m.
CompilationCommission:ItsGovernanceandUniqueStandardofCare
Brenda Castello
10:10 a.m.
NewMexicoStatutesAnnotated1978™—ThePerilsofFree
Raul Burciaga, Director, Legislative Council Service
10:35 a.m.
Break and refreshments
10:50 a.m.
CourtReports,RulesandForms—SettingthePaceforStateCourts
Joey D. Moya, Clerk of Court and Chief Counsel, Supreme Court of New
Mexico
11:15 a.m.
TaxLawsAndRegulations—TheDevilIsIntheDetails
Carolyn Wolf, Montgomery & Andrews, PA, and former in-house counsel for
New Mexico Taxation and Revenue Department
11:35 a.m.
Lawyer-To-LawyerPerspective:DutytoClientsandAffordabilityof
OfficialSources
Gary Don Reagan, Esq., Gary Don Reagan, P.A., small law firm practitioner,
former New Mexico State Senator and State Bar of New Mexico President
11:50 a.m.
Q&A
SupportingFaculty:
Ralph Trujillo, Lawyer Editor, New Mexico Compilation Commission
and Brad Terry, Customer Service, Sales and Training,
New Mexico Compilation Commission
HOW TO REGISTER:
Call 505-827-4821 to reserve your seat today!
A confirmation email will be sent to you within 24 hours.

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