Inside This Issue

Transcription

Inside This Issue

July 10, 2013 • Volume 52, No. 28
Inside This Issue
Table of Contents ................................................3
Corrections to the
2013-2014 Bench and Bar Directory.....................6
Investiture of Hon. R. John Duran.......................6
Thank You, Young Lawyers Division
Mixer Sponsors.....................................................7
Rules/Orders
No. 9-312A: Receipt for cash, money
order, or cashier’s check..................................15
No. 13-1827: Punitive damages.....................16
From the New Mexico Supreme Court
2013-NMSC-020, No. 32,279:
State v. Montoya............................................18
From the New Mexico Court of Appeals
2013-NMCA-068, No. 31,475:
Beggs v. City of Portales.................................26
Nature’s Entrance by Kandy Tate (see page 3)
Weems Art Gallery, Albuquerque
Bar Bulletin - July 10, 2013 - Volume 52, No. 28 1
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2 Bar Bulletin - July 10, 2013 - Volume 52, No. 28
Table of Contents
Officers, Board of Bar Commissioners
Andrew J. Cloutier, President
Erika Anderson, President-Elect
Martha Chicoski, Vice President
J. Brent Moore, Secretary-Treasurer
Hans Voss, Immediate Past President
Board of Editors
Jennifer C. Esquibel, Chair
Ian Bezpalko
Cynthia A. Christ
Kristin J. Dalton
Jocelyn C. Drennan
George C. Kraehe
Maureen S. Moore
Tiffany L. Sanchez
Michael J. Thomas
Joseph Patrick Turk
State Bar Staff
Executive Director Joe Conte
Managing Editor D.D. Wolohan
505-797-6039 • dwolohan@nmbar.org
Communications Assistant Evann Kleinschmidt
505-797-6087 • notices@nmbar.org
Graphic Designer Julie Schwartz
jschwartz@nmbar.org
Account Executive Marcia C. Ulibarri
505-797-6058 • mulibarri@nmbar.org
Digital Print Center
Manager Brian Sanchez
Assistant Michael Rizzo
©2013, 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: address@nmbar.org. • www.nmbar.org
July 10, 2013, Vol. 52, No. 28
Notices .................................................................................................................................................................4
Corrections to the 2013-2014 Bench and Bar Directory........................................................................6
Investiture of Hon. R. John Duran................................................................................................................6
Thank You, Young Lawyers Division Mixer Sponsors............................................................................7
Legal Education Calendar..............................................................................................................................8
Writs of Certiorari .......................................................................................................................................... 10
List of Court of Appeals’ Opinions............................................................................................................ 12
Recent Rule-Making Activity...................................................................................................................... 13
Rules/Orders
No. 9-312A: Receipt for cash, money order, or cashier’s check............................................ 15
No. 13-1827: Punitive damages....................................................................................................... 16
Opinions
2013-NMSC-020, No. 32,279: State v. Montoya.......................................................................... 18
2013-NMCA-068, No. 31,475: Beggs v. City of Portales........................................................... 26
Advertising ...................................................................................................................................................... 31
Meetings
July
10
Children’s Law Section BOD,
Noon, Juvenile Justice Center
10
Criminal Law Section BOD,
Noon, Law Office of Kelley & Boone
11
Elder Law Section BOD,
Noon, State Bar Center
11
Public Law Section BOD,
Noon, Montgomery & Andrews PA, Santa Fe
11
Business Law Section BOD,
4 p.m., via teleconference
12
Alternative Dispute Resolution Committee,
12
Bankruptcy Law Section BOD,
Noon, Four Hills Country Club
12
Prosecutors Section BOD,
18
Health Law BOD,
7:30 a.m., Teleconference
State Bar Workshops
July
11
Lawyer Referral for the Elderly Workshop
10–11:15 a.m., Presentation
12:30–3 p.m., Clinics,
Socorro County Senior Center, Socorro
18
Lawyer Referral for the Elderly Workshop
10–11:15 a.m., Presentation
12:30–3:30 p.m., Clinics,
Moriarty Senior Center, Moriarty
24
Consumer Debt/Bankruptcy Workshop
6 p.m., State Bar Center
27
Consumer Debt/Bankruptcy Workshop
9 a.m., Law Office of Kenneth Egan,
Las Cruces
August
7
Estate Planning/Probate Workshop
6 p.m., Mary Esther Gonzales Senior Center,
Santa Fe
7
Divorce Options Workshop
6–8 p.m, State Bar Center
Cover Artist: Kandy Tate is a full-time artist living in Placitas. She works primarily in oil, using bold brush strokes with
emphasis on color and sunlight. Her paintings have hung in the White House and have been used in movies (www.
kandytate.com).
Notices
Court News
N.M. Supreme Court
Proposed Revisions to the Rules
Governing Admission to the Bar
The Board of Bar Examiners is considering whether to recommend proposed
amendments for the Supreme Court’s
consideration. To comment on the proposed
amendments before they are submitted to
the Court for final consideration, either
submit a comment electronically through
the Supreme Court’s website at http://
nmsupremecourtclerk.nmcourts.gov/ or
send written comments to:
Joey D. Moya, Clerk
New Mexico Supreme Court
PO Box 848
Santa Fe, NM 87504-0848
Comments must be received on or before
July 26 to be considered by the Court. Note
that any submitted comments may be posted
on the Supreme Court’s website for public
viewing. For reference, see the June 26 (Vol.
52, No. 26) Bar Bulletin.
State Bar News
Attorney Support Groups
• July 15, 7:30 a.m.
First United Methodist Church, 4th and
Lead SW, Albuquerque (Group meets
the third Monday of the month)
• Aug. 5, 5:30 p.m.
First United Methodist Church, 4th and
Lead SW, Albuquerque (Group meets
the first Monday of the month)
• Aug. 12, 5:30 p.m.
UNM School of Law, 1117 Stanford NE,
Albuquerque, Room 1119 (Group meets
the second Monday of the month)
For more information, contact Bill
Stratvert, 505-242-6845.
Professionalism Tip
With respect to parties, lawyers, jurors, and witnesses:
I will be mindful of time schedules of lawyers, parties, and witnesses.
Support Group for Legal Professionals
• July 11, 5:30 p.m.
The group meets on the second Thursday
of the month at the Unitarian Universalist Church, 107 West Barcelona Rd.,
Santa Fe. For more information, call
Diego Zamora, 505-629-7343.
Animal Law Section
Meet and Greet
The Animal Law Section is hosting
two meet-and-greet events with Yolanda
Eisenstein, Chair-elect of the ABA’s Animal
Law Committee. The first event is a noon
luncheon, July 17, at the State Bar Center
in Albuquerque. The second event is 5 p.m.,
July 29, on the patio at the Rio Chama
Steakhouse, 414 Old Santa Fe Trail, Santa
Fe. Participants should R.S.V.P. to Tony
Horvat, thorvat@nmmbar.org, by the day
before the event.
Bankruptcy Law Section
Thirteenth Annual Golf Outing
Bankruptcy Law Section members can
enjoy a golf tournament at noon, July 12,
at the Four Hills Country Club, 911 Four
Hills Rd. SE, Albuquerque. The outing is
$65 and includes one round of golf, a golf
cart, and hors d’oeuvres. A cash bar will
be available. Participants must provide
their own golf clubs. Non-golfing section
members are encouraged to attend the
tournament reception at 5 p.m. Register by
July 8 to Gerald Velarde, 505-248-0050 or
gvelarde@mac.com.
Elder Law Section
Volunteers Needed
Volunteer attorneys are needed for estate
planning/probate workshops in Santa Fe
and Albuquerque. The Santa Fe workshop
is scheduled for Aug. 7, at the Mary Esther
Gonzales Senior Center, 1121 Alto St. The
Albuquerque workshop will be Aug. 14, at
the Rio Grande Credit Union, 301 Rio Bravo
Blvd. SE. To volunteer, contact Fletcher
Catron, fcatron@catronlaw.com (Santa Fe) or
Kevin Hammar, kevinhammar@qwestoffice.
net (Albuquerque).
Indian Law Section
Mixer
Enjoy live music on the patio of the
Indian Pueblo Cultural Center, 12th St. and
Indian School Rd. NW in Albuquerque,
on July 11 before the Indian Law Section’s
mixer in the Pottery Room. The event starts
at 6 p.m. ILS members are free; guests are
$20.
Paralegal Division
Luncheon CLE Series
The Paralegal Division invites members
of the legal community to bring a lunch and
attend “What’s New in the Supreme Court:
Supreme Court Updates” (1.0 G) presented
by George Bach. The program will be held
from noon–1 p.m., July 10, at the State Bar
Center (registration fee for attorneys–$16,
members of the Paralegal Division–$10,
non-members–$15). Registration begins at
the door at 11:45 a.m. For more information,
Judicial Records Retention and Disposition Schedules
Pursuant to the Judicial Records Retention and Disposition Schedules, exhibits (see specifics for each court below) filed with the courts for the years and
courts shown below, including but not limited to cases that have been consolidated, are to be destroyed. Cases on appeal are excluded. Counsel for parties are
advised that exhibits (see specifics for each court below) can be retrieved by the dates shown below. Attorneys who have cases with exhibits may verify exhibit
information with the Special Services Division at the numbers shown below. Plaintiff(s) exhibits will be released to counsel of record for the plaintiff(s), and
defendant(s) exhibits will be released to counsel of record for defendant(s) by Order of the Court. All exhibits will be released in their entirety. Exhibits not
claimed by the allotted time will be considered abandoned and will be destroyed by Order of the Court.
Court
Exhibits/Tapes
For Years
2nd Judicial District Court
Exhibits in Civil Cases
1982-2000
505-841-6717 or
505-841-7596
May Be Retrieved
Through
July 12
www.nmbar.org
contact Cheryl Passalaqua, 505-247-0411, or
Evonne Sanchez, 505-222-9352. Webcast to
three locations:
•Santa Fe: Montgomery & Andrews,
325 Paseo de Peralta, Santa Fe. Contact
Donna Ormerod, 505-986-2520.
•Roswell: Atwood, Malone, Turner &
Sabin, 400 N. Pennsylvania, Ste. 1100.
Contact Tomma Shumate, 575-6226221.
•Farmington: Titus & Murphy, 2021 E.
20th Street. Contact Heather Parmley,
505-326-6503.
Other Bars
Young Lawyers Division
N.M. Defense Lawyers
Association
Wills for Heroes Event in Mesilla
YLD has scheduled a Wills for Heroes
event in Mesilla, just outside Las Cruces,
on Saturday, July 27, location and time to
be determined. If you are interested in volunteering and have a PC (sorry, no Macs),
contact new Region 4 Director Erin Atkins
at atkinser@gmail.com.
UNM
Law Library
Free Library Services for
New Mexico Attorneys
N.M. Black Lawyers Association
Annual Poolside Brunch
Join the New Mexico Black Lawyers
Association for its Annual Poolside Brunch
from 11 a.m.–1 p.m., July 20, at the home of
Tommy and Angela Jewell, 905 Washington
SE, Albuquerque. Call 505-256-1819 for
directions. Purchase a ticket for $30 and receive entry into a raffle for $500. Tickets can
be purchased by emailing nmblacklawyers@
gmail.com.
Seeking Award Nominations
The New Mexico Defense Lawyers Association is accepting nominations for the
2013 NMDLA Outstanding Civil Defense
Lawyer and the 2013 NMDLA Young Lawyer of the Year awards. Nomination forms
are available online at www.nmdla.org, by
emailing nmdefense@nmdla.org, or calling
505-797-6021. The deadline for nominations is Aug. 1. The awards will be presented
at the NMDLA Annual Meeting on Oct. 11
at the Hotel Andaluz in Albuquerque.
•Delivery (fax, email, or mail) of articles
or other documents available in our collection. (Requests must include an exact
citation.)
•Interlibrary loan of materials from other
law libraries. (The Law Library does
not charge a fee for this service, but the
attorney will be responsible for any fees
assessed by the lending library.)
•Onsite access to research databases such
as Westlaw-Pro, LexisNexis Academic,
Loislaw, Shepard’s, RIA Checkpoint, and
many others.
•Onsite access to LexisNexis Academic
and Loislaw at the UNM branch campus
libraries in Valencia County, Gallup, and
Los Alamos (licenses provided by the
UNM Law Library).
•Advice concerning the licensing of lowcost online legal resources.
For more information about the UNM Law
Library and any of these free services, visit
http://lawlibrary.unm.edu, call 505-2770935, or email libref@law.unm.edu.
Other News
Reference Desk Hours
The Law Library reference desk will have
limited hours July 12, 15–17, and will be
closed Aug. 8–9. The library will remain
open on these days. For more information,
call the library at 505-277-6236.
Effective July 1, the Corporations Bureau
was transferred to the Business Services
Division of the Office of the New Mexico
Secretary of State. The current Secretary of
State’s website, www.sos.state.nm.us, has its
own corporations web page that provides
N.M. Workers’ Compensation
Administration
Judicial Vacancy
The director of the New Mexico Workers’
Compensation Administration announces
a workers’ compensation judge vacancy
effective Aug. 28. The primary location
of the position is in Albuquerque with
travel throughout the state. This position
is statutorily exempt with a one-year term.
Interested individuals may request a judicial application by calling 505-841-6013,
visiting the WCA, 2410 Centre Avenue SE,
Albuquerque, or by visiting www.workerscomp.state.nm.us. The completed judicial
application and supporting documentation
must be received by the WCA no later than
close of business on July 25.
Office of the N.M.
Secretary of State
Business Services Division
MeetingBridge
MeetingBridge offers easy-to-use
teleconferencing especially designed for law
firms. Set up calls and notify attendees in one
symple step. Client codes can be entered for
easy tracking. Operator assistance is available
on every call.
Contact Dave Martin
1-88-723-1200, ext. 627
dmartin@meetingbridge.com
www.meetingbridge.com/371
Submit
announcements
for publication in
the Bar Bulletin to
notices@nmbar.org
by noon Monday
the week prior to
publication.
New Mexico Lawyers
and Judges
Assistance Program
Help and support are only a phone call away.
24-Hour Helpline
Attorneys/Law Students
505-228-1948 • 800-860-4914
Judges
888-502-1289
www.nmbar.org/JLAP/JLAP.html
www.nmbar.org
corporate information. New and existing
corporations have access to electronic filing
of their annual reports. The new address for
mailing corporate filing is: Office of the New
Mexico Secretary of State, Attn: Corporations Bureau, 325 Don Gaspar, Suite 300,
Santa Fe, NM 87501. Call the Corporations
Bureau at 800-477-3632 or 505-827-4508.
The Investiture of
Hon. R. John Duran
Giving Back Changes Lives
Health Management Systems
TLC Cares
Medicaid Estate Recovery Program
This Legal Community Cares
Emergency Assistance
to Legal Professionals in Crisis
The New Mexico Human Services Department has chosen Health Management
Systems to administer the Medicaid Estate
Recovery Program. Pursuant to NMSA
§27-2A-1, et seq., and Federal law 42
U.S.C. § 1396p, HSD is required to recover
certain Medicaid expenditures. For more
information, contact HMS, 855-212-0144
or NMestate@hms.com.
The Hon. R. John Duran was sworn
in as the newest Bernalillo County
Metropolitan Court judge on June 13
at the Bernalillo Metropolitan Court
Rotunda. A reception followed at the
DoubleTree Hotel. Congratulations,
Judge Duran!
TLC Cares enables the legal
community to reach out in small
but meaningful ways to those
judges, lawyers, court personnel,
paralegals, legal staff and their
families who experience
the death of a loved one,
a catastrophic illness or injury, or
other unfortunate circumstance.
Join the network today
by emailing TLCcares@nmbar.org.
Corrections to the 2013–2014 Bench and Bar Directory
Clark, Thomas M.......................505-820-1825
Clark & Jones LLC
1322 Paseo de Peralta
Santa Fe NM 87501-4325
F 505-986-0475
tmattclark@earthlink.net
McLean, Cheryl K......................505-243-7343
Cheryl K. McLean Attorney at Law
714 Lomas Blvd. NW
Albuquerque NM 87102-1954
F 505-243-5265
chrymcln@cs.com
Navarro, Amanda .....................505-880-8737
Justice Legal Group
1516 San Pedro Dr NE
F 505-880-8738
amandan@justicelegalgroup.com
www.justicelegalgroup.com
Standridge, David A. Jr. ............505-880-8737
Justice Legal Group
1516 San Pedro Dr NE
F 505-880-8738
davids@justicelegalgroup.com
www.justicelegalgroup.com
Thrower, Brandt.......................505-325-6810
Thrower Law Firm
411 N Auburn Ave
Farmington, NM 87401-5814
frontdesk@throwerlaw.com
Thrower, Larry..........................505-325-6810
Thrower Law Firm
411 N. Auburn Ave
Farmington, NM 87401-5814
lttlaw@throwerlaw.com
Note: Information for active members is current as of March 15, 2013. Visit www.nmbar.org and select “Find and Attorney” for the most
up-to-date information. To submit a correction, contact Pam Zimmer, 505-797-6092 or pzimmer@nmbar.org.
Second Judicial District
BERNALILLO COUNTY
District Attorney
Kari E. Brandenburg
kbrandenburg@da2nd.state.nm.us
Bernalillo, Main Office
520 Lomas NW
Albuquerque NM 87102
505-222-1099
Fax: Call the main office for individual fax numbers
Juvenile Division
5100 Second St NW
505-222-1160 F 505-241-1160
Metro Division
520 Lomas NW
505-222-1099 F 505-241-1000
Thank you to
James Bristol, Bristol Family Law LLC
Joachim Marjon, Marjon Law PC
for sponsoring the Young Lawyers Division
mixer in Santa Fe.
Legal Education
July
11
Corporate Governance for Nonprofits
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
18
Managing Employee Leave
1.0 G
505-797-6020
www.nmbarcle.org
16
Health Care Issues in Estate Planning
1.0 G
505-797-6020
www.nmbarcle.org
19-20 2013 Advanced Collaborative
Law Symposium: Interest-Based
Negotiation
12.0 G
Albuquerque
505-797-6020
www.nmbarcle.org
23–24Private Placements for Closely Held
Businesses, Part 1 and 2
2.0 G
505-797-6020
www.nmbarcle.org
30
Attorney Ethics in Real Estate Practice
1.0 EP
505-797-6020
www.nmbarcle.org
August
6
UCC Article 9 Update
1.0 G
505-797-6020
www.nmbarcle.org
13
Asset Protection in Estate Planning
1.0 G
505-797-6020
www.nmbarcle.org
15
Ethics, Virtual Law Office and
Multi-Jurisdictional Practice
1.0 EP
505-797-6020
www.nmbarcle.org
20-21 Understanding the Law of Debt
Collection for Businesses,
Parts 1 and 2
2.0 G
505-797-6020
www.nmbarcle.org
22
Outstanding Agreements:
Structuring and Drafting Issues
1.0 G
505-797-6020
www.nmbarcle.org
27
Buying/Selling LLC and Partnership
Interests
1.0 G
505-797-6020
www.nmbarcle.org
29
Mixed Use Developments in Real
Estate: Planning and Drafting Issues
1.0 G
505-797-6020
www.nmbarcle.org
September
5
Generation Skipping Transfer Tax
Planning
1.0 G
505-797-6020
www.nmbarcle.org
10
Choice of Entity for Real Estate
1.0 G
505-797-6020
www.nmbarcle.org
12
UCC 9: Fixtures, Liens, Foreclosures
& Remedies
1.0 G
505-797-6020
www.nmbarcle.org
17
Transactions Among Partners/LLC
Members and Partnerships/LLCsMajor Tax Traps for the Unwary
1.0 G
505-797-6020
www.nmbarcle.org
Legal Education
www.nmbar.org
September
19
Estate Planning to Reflect Religious
and Philosophical Beliefs
1.0 G
505-797-6020
www.nmbarcle.org
24-25 2013 Update on Advising Physician
and Dental Practices, Parts 1 and 2
2.0 G
505-797-6020
www.nmbarcle.org
27
Ethics for Estate Planning
1.0 EP
505-797-6020
www.nmbarcle.org
15-16 Planning with Family Limited
Partnerships/Family LLCs,
Part 1 and 2
2.0 G
505-797-6020
www.nmbarcle.org
29
Planning to Avoid Probate
1.0 G
505-797-6020
www.nmbarcle.org
October
1-2
Drafting Licensing Agreements,
Part 1 and 2
2.0 G
505-797-6020
www.nmbarcle.org
8
Ground Leases: Structuring and
Drafting Issues
1.0 G
505-797-6020
www.nmbarcle.org
22
2013 Americans With Disabilities
Act Update
1.0 G
505-797-6020
www.nmbarcle.org
31
Attorney Ethics and ADR
1.0 EP
505-797-6020
www.nmbarcle.org
November
1
UCC 9: Lien Foreclosure &
Remedies
1.0 G
505-797-6020
www.nmbarcle.org
8
Ethics of Co-Counsel and Referral
Relationships
1.0 EP
505-797-6020
www.nmbarcle.org
19-20 Estate Planning for the Elderly,
Parts 1 and 2
2.0 G
505-797-6020
www.nmbarcle.org
5
12
Estate Planning and IRAs
1.0 G
505-797-6020
www.nmbarcle.org
21-22 Attorney and Conflicts With Their
Clients, Parts 1 and 2
2.0 G
505-797-6020
www.nmbarcle.org
Treatment of Trusts in Marital
Separation
1.0 G
505-797-6020
www.nmbarcle.org
7
Transfer, Sales & Use Taxes in M&A
1.0 G
505-797-6020
www.nmbarcle.org
14
Ethics and Client Money: Trust
Fund Accounting and More
1.0 EP
505-797-6020
www.nmbarcle.org
26
Indemnification and Hold Harmless
Provisions in Business Agreements
1.0 G
505-797-6020
www.nmbarcle.org
Writs of Certiorari
As Updated by the Clerk of the New Mexico Supreme Court
Joey D. Moya, Chief Clerk New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Effective June 27, 2013
Petitions for Writ of Certiorari Filed and Pending:
No. 34,215
No. 34,164
No. 34,207
No. 34,206
No. 34,205
No. 34,204
No. 34,203
No. 34,202
No. 34,201
No. 34,196
No. 34,195
No. 34,194
No. 34,192
No. 34,191
No. 34,190
No. 34,157
No. 34,154
No. 34,134
No. 34,181
No. 34,180
No. 34,122
No. 34,173
No. 34,170
No. 34,165
No. 34,158
No. 34,095
No. 34,093
No. 34,149
No. 34,140
No. 34,138
No. 34,111
No. 34,065
No. 34,067
No. 34,047
No. 33,994
No. 33,868
No. 33,819
No. 33,863
No. 33,867
No. 33,810
Date Petition Filed
Spartin v.
Dept. of Agriculture
COA 32,786 06/26/13
State v. Chavez
COA 29,810 06/24/13
Wallace v. State
12-501 06/20/13
State v. Candelaria
COA 32,665 06/19/13
Convenience v. Laughlin COA 32,074 06/19/13
Faber v. King
COA 31,446 06/18/13
State v. Crumbo
COA 32,699 06/18/13
State v. Marquez
COA 32,227 06/18/13
State v. Rivera
COA 30,836 06/18/13
Rice v. Wright
COA 32,582 06/13/13
State v. Venegas
COA 32,603 06/13/13
King v. Faber
COA 34,116 06/13/13
State v. Muniz
COA 32,584 06/12/13
Goodson v. Janecka
12-501 06/12/13
State v. Osborne
COA 32,624 06/11/13
State v. Maria G.
COA 31,953 06/11/13
State v. Green
COA 31,885 06/10/13
Randall v. Pittman
COA 31,492 06/06/13
West v. Mazzola
COA 33,467 06/04/13
Response filed 6/24/13
Dooley v.
Quiet Title
COA 31,073/31,072 06/04/13
State v. Steven B.
COA 31,322 05/31/13
Converse v. State
12-501 05/28/13
Holguin v. Nance
12-501 05/23/13
Conley v. Janecka
12-501 05/22/13
Griego v.
St. John Healthcare
COA 31,777 05/17/13
Ramirez v. State
12-501 05/15/13
Cordova v. Cline
COA 30,546 05/10/13
Valenzuela v. Janecka
12-501 05/09/13
Response ordered; due 7/18/13
Austin Land Development. Co. v.
Navajo Tribal Util.
COA 32,601 05/01/13
Jones v. Franco
12-501 05/01/13
Cordova v. Jaramillo
12-501 04/18/13
Moore v. Nance
12-501 03/15/13
Gutierrez v. Williams
12-501 03/14/13
State v. Ingram
COA 30,961 03/05/13
Gonzales v. Williams
COA 32,274 01/14/13
Burdex v. Bravo
12-501 11/28/12
Response ordered; filed 1/22/13
Chavez v. State
12-501 10/29/12
Murillo v. State
12-501 10/10/12
Roche v. Janecka
12-501 09/28/12
Gonzales v. Marcantel
12-501 09/14/12
No. 33,539
No. 33,630
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) Date Writ Issued
No. 32,804 State v. Servantez
COA 30,414 02/07/11
No. 33,001 State v. Rudy B.
COA 27,589 06/08/11
No. 33,046 State v. Munoz
COA 30,837 07/21/11
No. 33,265 State v. Garcia
COA 29,338 11/17/11
No. 33,604 State v. Ramirez
COA 30,205 06/05/12
No. 33,725 State v. Pasillas
COA 31,513 09/14/12
No. 33,808 State v. Nanco
COA 30,788 10/12/12
No. 33,796 State v. Vasquez
COA 29,868 10/12/12
No. 33,847 State v. Urquizo
COA 30,337 11/02/12
No. 33,837 State v. Trujillo
COA 30,563 11/02/12
No. 33,763 State v. Almanzar
COA 30,600 11/02/12
12-501 11/02/12
No. 33,862 State v. Gerardo P.
COA 31,250 11/09/12
No. 33,870 State v. Perez
COA 31,678 11/16/12
No. 33,898 Bargman v. Skilled
Healthcare Group, Inc. COA 31,088 12/06/12
COA 31,470 12/06/12
No. 33,877 State v. Alvarez
COA 31,987 12/06/12
No. 33,915 State v. Leon
COA 31,067 12/26/12
No. 33,884 Acosta v. Shell Western Exploration
and Production, Inc.
COA 29,502 12/26/12
No. 33,817 Gordon v. King
12-501 12/26/12
No. 33,924 AFSCME Council 18 v.
City of Albuquerque
COA 30,927 01/07/13
No. 33,932 State v. Finch
COA 30,706 01/10/13
No. 33,949 Rodriguez v. Del Sol
Shopping Center COA 30,421/30,578 01/17/13
No. 33,952 Melendez v.
Salls Brothers
COA 32,293 01/18/13
No. 33,946 State v. Martinez
COA 30,637 01/18/13
No. 33,930 State v. Rodriguez
COA 30,938 01/18/13
No. 33,969 Safeway, Inc. v.
Rooter 2000 Plumbing COA 30,196 01/28/13
No. 33,896 Rodriguez v. Del Sol
Shopping Center COA 30,421/30,578 01/28/13
No. 33,977 State v. Calderon
COA 30,844 02/08/13
No. 33,970 State v. Parvilus
COA 30,379 02/08/13
No. 34,009 State v. Huettl
COA 31,141 03/01/13
No. 33,999 State v. Antonio T.
COA 30,827 03/01/13
No. 33,997 State v. Antonio T.
COA 30,827 03/01/13
No. 33,993 Fowler v. Vista Care and American
Home Insurance Co.
COA 31,438 03/01/13
No. 33,938 State v. Crocco
COA 31,498 03/01/13
No. 33,928 Skowronski v. N.M. Public
Education Dept.
COA 31,119 03/01/13
No. 34,013 Foy v. Austin Capital
COA 31,421 03/15/13
No. 34,035 Town of Edgewood v. N.M. Municipal
Boundary Commission COA 30,768 03/29/13
Writs of Certiorari
No. 34,010
No. 34,007
No. 34,039
No. 34,044
No. 34,076
No. 34,074
No. 34,085
No. 34,083
No. 34,132
No. 34,125
No. 34,124
No. 34,120
No. 34,128
No. 34,150
No. 34,146
N.M. Cattle Growers v. N.M. Water Quality
Control Commission
COA 31,191 03/29/13
City of ABQ v.
AFSCME Local 3022
COA 31,075 04/05/13
Cavu Co. v. Martinez
COA 32,021 04/05/13
State v. Riordan
COA 31,795 04/05/13
State v. Martinez
COA 32,424 04/19/13
State v. Maples
COA 30,507 04/19/13
Badilla v. Walmart
COA 31,162 05/10/13
Amethyst v. Terhune
COA 31,165 05/10/13
AFSCME v.
City of Albuquerque
COA 31,631 05/24/13
Redman v. McClain Co. COA 32,439 05/24/13
State v. Cortina
COA 30,317 05/24/13
State v. Baca
COA 31,442 05/24/13
Benavides v. Eastern
N.M. Medical
COA 32,450 05/31/13
Kimbrell v.
Kimbrell
COA 30,447/31,491 06/14/13
Madrid v. Brinker
COA 31,244 06/14/13
Certiorari Granted and Submitted to the Court:
(Submission Date = date of oral
argument or briefs-only submission) Submission Date
No. 32,713 Bounds v. D’Antonio
COA 28,860 10/13/11
No. 32,717 N.M. Farm and Livestock Bureau v.
D’Antonio
COA 28,860 10/13/11
No. 32,860 State v. Stevens
COA 29,357 01/10/12
No. 33,057 State v. Turrietta
COA 29,561 04/30/12
No. 33,362 Convisser v. Ecoversity
COA 30,100 08/13/12
No. 33,224 Bank of New York v.
Romero
COA 29,945 09/12/12
No. 33,296 State v. Gutierrez
COA 29,997 09/12/12
No. 33,226 State v. Olsson
COA 29,713 10/31/12
No. 33,014 State v. Crane
COA 29,470 11/13/12
No. 33,324 State v. Evans
COA 31,331 11/26/12
No. 33,483 State v. Consaul
COA 29,559 12/17/12
No. 33,382 N.M. Human Services v.
Starko, Inc.
COA 29,016/27,922 01/15/13
No. 33,383 Presbyterian Health Plan v.
Starko, Inc.
COA 29,016/27,922 01/15/13
No. 33,384 Cimarron Health Plan v.
Starko, Inc.
COA 29,016/27,922 01/15/13
No. 33,676 City of Farmington v.
Pinon-Garcia
COA 30,888 01/23/13
No. 33,650 City of Farmington v.
Pinon-Garcia
COA 30,888 01/23/13
No. 33,711 N.M. Taxation and Revenue Dept. v.
Tindall
COA 31,194 02/11/13
No. 33,579 Avalos v. N.M. Counseling and Therapy
Practice Board
COA 30,611 02/12/13
No. 33,693 State v. Pangaea Cinema COA 30,380 02/13/13
http://nmsupremecourt.nmcourts.gov.
No. 33,635
No. 33,687
No. 33,611
No. 33,594
No. 33,589
No. 33,632
No. 33,548
No. 33,567
No. 33,566
No. 33,592
No. 33,571
No. 33,770
No. 33,874
No. 33,565
No. 34,127
No. 33,779
No. 33,971
No. 34,126
Baker v.
Hedstrom COA 30,475/30,491/30,639
Elane Photography v.
Willock
COA 30,203
Bank of America v.
Quintana
COA 30,354
Fallick v. Montoya
COA 30,172
Zhao v. Montoya
COA 30,172
First Baptist Church of Roswell v.
Yates Petroleum
COA 30,359
State v. Marquez
COA 30,565
State v. Leticia T.
COA 30,664
State v. Leticia T.
COA 30,664
State v. Montoya
COA 30,470
State v. Miller
COA 29,244
Vaughn v.
St. Vincent Hospital
COA 30,395
Encinas v.
Whitener Law Firm
COA 30,106
State v. Ballard
COA 30,187
State v. Raquel M.
COA 31,869
State v. Vento
COA 30,469
State v. Newman
COA 31,333
State v. Maurice H.
COA 31,597
02/25/13
03/11/13
03/12/13
03/13/13
03/13/13
03/13/13
04/15/13
04/30/13
04/30/13
05/15/13
05/28/13
05/30/13
05/30/13
05/30/13
07/24/13
07/24/13
07/24/13
08/07/13
Petition for Writ of Certiorari Denied:
No. 34,175
No. 34,151
No. 34,179
No. 34,178
No. 34,177
No. 34,112
No. 34,174
No. 34,172
No. 34,171
No. 34,163
No. 34,161
No. 34,153
Elless v, Artesia General
Leonard v. Leonard
Ponderosa v. Ponderosa
State v. Jaure
State v. Zamora
State v. Smith
State v. Ramirez
State v. Armijo
State v. Medellin
State v. Nikol M.
Sanchez v. Brown
Carlton v.
City of Albuquerque
Date Order Filed
COA 3,537 06/27/13
COA 30,566 06/27/13
COA 31,489 06/25/13
COA 31,219 06/25/13
COA 32,459 06/25/13
COA 31,265 06/25/13
COA 32,517 06/24/13
COA 32,415 06/24/13
COA 32,652 06/24/13
COA 31,916 06/24/13
12-501 06/24/13
COA 32,733 06/24/13
Opinions on Writs of Certiorari:
No. 33,380
No. 33,364
No. 33,331
No. 33,217
Palenick v.
City of Rio Rancho
Nettles v. Ticonderoga
Owners Association
Strausberg v.
Laurel Healthcare
State v. Ramos
Date Filed
COA 30,136 06/27/13
COA 31,342 06/27/13
COA 29,238 06/27/13
COA 29,514 06/27/13
Opinions
As Updated by the Clerk of the New Mexico Court of Appeals
Wendy F. Jones, Chief Clerk New Mexico Court of Appeals
PO Box 2008 • Santa Fe, NM 87504-2008 • (505) 827-4925
Effective July 1, 2013
Date Opinion Filed
Unpublished Opinions
No. 32702
3rd Jud Dist Dona Ana JQ-11-27, CYFD v DONNA S (affirm)
6/24/2013
No. 31623
7th Jud Dist Torrance CR-10-11, STATE v A SEAGER (affirm in part, reverse in part and remand)
6/25/2013
No. 32594
AD AD ADM-12-FA-279, K GALLEGOS v HSD (reverse and remand)
6/25/2013
No. 32618
13th Jud Dist Valencia YR-09-5, STATE v S AYERS (affirm)
6/27/2013
Slip Opinions for Published Opinions may be read on the Court’s website:
http://coa.nmcourts.gov/documents/index.htm
Recent Rule-Making Activity
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 July 10, 2013
Pending Proposed Rule Changes Open for Comment:
Comment Deadline
Criminal Forms
9-312A
Receipt for cash, money order,
or cashier’s check.
07/19/13
Uniform Jury Instructions - Civil
13-1827 Punitive damages. 07/19/13
Rules Governing Admission to the Bar
15-103.Qualifications.
15-104.1 Admission by motion. (Proposed new rule)
07/26/13
07/26/13
Recently Approved Rule Changes
Since Release of 2013 NMRA:
Effective Date
Rules of Civil Procedure for the District Courts
1-005.2
1-120
Electronic service and filing of pleadings
and other papers.
01/29/13
Domestic relations action; scope; use of forms
indissolution of marriage proceedings.
05/31/13
Rules of Civil Procedure for the Magistrate Courts
2-105
Assignment and designation of judges
05/05/13
Domestic Relations Forms
4A-100
Domestic relations forms; short title;
purpose of forms; citations regarding
use of forms (Withdrawn)
4A-100 Domestic relations forms; instructions
and cautions regarding use of forms
4A 101 Domestic relations cover sheet
4A 101A Domestic relations information sheet
4A-102 Petition for dissolution of marriage
(no children)
4A-103 Petition for dissolution of marriage
(with children)
4A-104Response
4A-105 Entry of appearance pro se
4A-101(Withdrawn)
4A-200 Domestic relations forms;
instructions for stage two (2) forms
4A-201 Domestic relations forms for self-represented
parties; limited purpose of forms; cautions
regarding use of forms (Withdrawn)
4A-201 Temporary domestic order
4A-202 Definitions (Withdrawn)
4A-202 Motion for temporary order
05/31/13
05/31/13
05/31/13
05/31/13
05/31/13
05/31/13
05/31/13
05/31/13
05/31/13
05/31/13
05/31/13
05/31/13
05/31/13
05/31/13
4A-203
Forms not available through courts
(Withdrawn)05/31/13
4A-203 Motion to modify temporary order
05/31/13
4A-204 Domestic relations forms; divorce cases;
forms needed; filing fee (Withdrawn)
05/31/13
4A-204 Motion for referral to mediation
(child custody, timesharing, or visitation)
05/31/13
4A-205 Parenting plan and child support worksheet;
wage withholding order (Withdrawn)
05/31/13
4A-205 Motion for referral to mediation
(child support or other financial issues)
05/31/13
4A-206 Request for hearing
05/31/13
4A-207 Notice of hearing
05/31/13
4A-208 Notice of compliance with Rule 1-123 NMRA 05/31/13
4A-209 Verified motion for order to show cause
05/31/13
4A-210 Order to appear and show cause
05/31/13
4A-211 Objection to hearing officer report
05/31/13
4A-212 Interim monthly income
and expenses statement
05/31/13
4A-213 Interim order allocating income and expenses 05/31/13
4A-214 Community property and liabilities schedule 05/31/13
4A-215 Separate property and liabilities schedule
05/31/13
for stage three (3) forms
05/31/13
4A-301 Marital settlement agreement
05/31/13
4A-302 Custody plan
05/31/13
4A-303 Child support obligation
05/31/13
4A-304 Wage withholding order
05/31/13
4A-305 Final decree of dissolution of marriage
05/31/13
for default proceedings
05/31/13
4A-311 Affidavit as to Respondent’s failure
to plead or otherwise defend
05/31/13
4A-312 Certificate as to the state of the record
05/31/13
4A-313 Application for default judgment
and final decree of dissolution of marriage
05/31/13
4A-321(Withdrawn)
05/31/13
4A-322(Withdrawn)
05/31/13
4A 401 Uncontested petition for paternity;
forms needed; filing fee
06/24/13
4A 402 Petition to establish parentage
06/24/13
4A 403 Final decree of parentage
06/24/13
Rules of Criminal Procedure for the District Courts
5-205
5-501
Unnecessary allegations
Disclosure by the state
05/13/13
05/13/13
Rules of Criminal Procedure
for the Magistrate Courts
6-204
6-206
6-208
6-802
Issuance of warrant for arrest and summons
Arrest warrants
Search warrants
Return of the probation violator
07/15/13
07/15/13
07/15/13
05/05/13
Rule-Making Activity
http://nmsupremecourt.nmcourts.gov.
Rules of Criminal Procedure
for the Metropolitan Courts
7-204
7-206
7-208
7-802
Arrest warrants
Search warrants
Rules Governing the Client Protection Fund
Commission
07/15/13
07/15/13
07/15/13
05/05/13
Rules of Procedure for the Municipal Courts
8-203
8-205
8-207
8-802
Arrest warrants
Search warrants
07/15/13
07/15/13
07/15/13
05/05/13
Criminal Forms
9-212C
Bench warrant
05/05/13
05/05/13
15-101 Definition; title
15-104Application
15-105 Application fees
15-202 Place and time of examinations
15-301.2 Legal services provider limited law license
15-402Qualifications
17B-001Jurisdiction.
17B-002 Appointment of the Disciplinary Board.
17B-003 Disciplinary counsel; duties and powers. 17B-004Investigation.
17B-005 Civil injunction proceedings.
17B-006 Determination by the Supreme Court.
17B-007 Civil contempt proceedings. 17B-008Immunities.
17B-009 General provisions.
05/14/13
05/14/13
05/14/13
05/14/13
05/14/13
05/14/13
08/23/13
08/23/13
08/23/13
08/23/13
08/23/13
08/23/13
08/23/13
08/23/13
08/23/13
Code of Judicial Conduct
Reporting requirements
04/08/13
Supreme Court General Rules
23-112
Rules Governing Admission to the Bar
01/01/13
Rules Concerning the Unauthorized Practice of Law
21-315
Rules of Evidence
11-1101 Applicability of the rules
17A-005 Composition and offices of the commission.
Citations for papers and other pleadings
07/01/13
Rules/Orders
The following proposed revisions are being re-published due to
an omission. The State Bar regrets the error.
Proposed Revisions to the Criminal Forms
The Rules for Courts of Limited Jurisdiction Committee is
recommending proposed amendments to the following Criminal
Form for the Supreme Court’s consideration. If you would like
to comment on the proposed amendments set forth below before
they are submitted to the Court for final consideration, you may
do so by either submitting a comment electronically through the
Supreme Court’s web site at http://nmsupremecourt.nmcourts.gov/
or sending your written comments by mail or fax to:
Joey D. Moya, Clerk
P.O. Box 848
Santa Fe, New Mexico 87504-0848
505-827-4837 (fax)
Your comments must be received by the Clerk on or before July 26,
2013, to be considered by the Court. Please note that any submitted comments may be posted on the Supreme Court’s web site for
public viewing.
________________________________
9-312A. [Cash receipt.] Receipt for cash, money order, or
cashier’s check.
[For use in the magistrate and municipal courts]
STATE OF NEW MEXICO
[COUNTY OF_______________]
[CITY OF_______________]
IN THE _______________ COURT
[No. _________]
STATE OF NEW MEXICO]
[COUNTY OF _______________]
[CITY OF _______________]
v.
[No. ________]
_______________, Defendant
[CASH] RECEIPT FOR CASH, MONEY
ORDER, OR CASHIER’S CHECK
Defendant information:
Arrest date:
____________________________
Date of birth: ____________________________
Mailing address:
____________________________
City, state & zip code:
____________________________
Address (physical) (if different
from mailing address):____________________________
____________________________
Telephone number:____________________________
([include] Include current [mailing address] telephone
number or contact information in case a refund is due.)
(Fill [to be filled ] in only if $10,000 or more is paid.)
[tendered in case; required by Internal Revenue Service)]
Tax ID number or Social Security
number of Defendant: ____________________________
http://nmsupremecourt.nmcourts.gov
Occupation, profession or business: ____________________
Complete if person posting cash amount is not Defendant
Cash information:
Date cash posted:
____________________________
Amount posted:
____________________________
Cash posted by: ____________________________
Mailing address of
____________________________
person paying cash:
____________________________
(include current telephone number or contact information in
case a refund is due)
Payment information:
Date of payment:
____________________________
Amount paid:
____________________________
Number of money order
or cashier’s check:
____________________________
Issuer:
____________________________
Payment made by:
____________________________
(print name)
Mailing address of person
paying cash, money order,
or cashier’s check if person
paying is not defendant: ____________________________
____________________________
Telephone number:
____________________________
(Include current telephone number or contact information
in case a refund is due.)
(Fill in only if $10,000 or more is paid.)
Tax ID number or social security
number of person paying: ____________________________
Occupation, profession or business:
____________________________
PERSON OTHER THAN DEFENDANT PAYING CASH,
MONEY ORDER, OR CASHIER’S CHECK:
I understand that the cash I have posted will be used to pay
any fines, fees, or costs that the defendant owes if the court
has ordered that the defendant may only be released upon the
payment of such fines, fees, and costs and that if this is so
I will not be entitled to a refund[, regardless of what I have
checked below].
If the court has not ordered that the defendant will only be
released upon payment of fines, fees, and costs,
[ ]
I agree
[ ]
I do not agree
that the cash I have posted may be used to pay any fines, fees,
or costs that the court may order the defendant to pay after
the defendant’s release from custody.
__________________________________
Signature of person posting cash
(required)
DEFENDANT: (If the defendant has been arrested on
a failure to pay warrant, the defendant’s signature is not
required.)
(This alternative may be used only when the defendant has
failed to appear, the bench warrant authorizes release on
payment of fines and fees, and the person posting the cash
has checked the “I agree” box above.)
[]
I plead guilty to the charges. I ask the court to use
the cash for payment of fines, fees, and costs instead of
requiring me to appear before the court.
(This alternative may be used only when the bench warrant
authorizes release of the defendant on bond, instead of
payment of fines and fees.)
[ ]
I agree to appear in the ________________ court on
_______________, _____ (date) at ________ [a.m.] [p.m.].
__________________________________
Signature of defendant
[CASH] PAYMENT RECEIVED BY:
__________________________________
Signature of clerk or bail designee
__________________________________
Date
COURT EMPLOYEE RECEIVING PAYMENT:
__________________________________
Signature
__________________________________
Date
[Approved by Supreme Court Order 07-8300-34, effective
January 22, 2008; as amended by Supreme Court Order No.
_______________, effective _______________.]\
________________________________
Proposed Revisions to the Uniform Jury Instructions
for Civil Cases
The Supreme Court’s Committee on Uniform Jury Instructions for Civil Cases is publishing new proposed amendments
to the Uniform Jury Instructions—Civil following the previous
publication of proposed amendments on October 24, 2012. If
you would like to comment on the proposed amendments set
forth below before they are submitted to the Court for final
consideration, you may do so by either submitting a comment
electronically through the Supreme Court’s web site at http://
nmsupremecourt.nmcourts.gov/ or sending your written comments by mail or fax to:
Joey D. Moya, Clerk
P.O. Box 848
Santa Fe, New Mexico 87504-0848
505-827-4837 (fax)
Your comments must be received by the Clerk on or before July 26,
2013, to be considered by the Court. Please note that any submitted comments may be posted on the Supreme Court’s web site for
public viewing.
________________________________
13-1827. Punitive damages[; direct and vicarious liability].
(Introduction)
In this case, ________________________ (name
of party making claim for punitive damages) seeks to recover
punitive damages from ________________________ (name of
party against whom punitive damages are sought, [either directly or
vicariously]). You may consider punitive damages only if you find
that ________________________ (party making claim) should
recover compensatory [or nominal] damages.
([Direct Liability] Theories of Liability)
[[1.]
If you find that the conduct of ___________
(name of party against whom direct liability for punitive damages
is asserted) was [malicious], [willful], [reckless], [wanton],
[fraudulent] [or] [in bad faith], then you may award punitive
damages against [him] [her] [it].]
[(Vicarious Liability)]
[[2.][Additionally, if ] [Also] [I]f you find that the
conduct of ________________________ (name of agent or
employee [of party on whose conduct vicarious claim for punitive
damages is based] who was a tortfeasor) was [malicious], [willful],
[reckless], [wanton], [fraudulent] [or] [in bad faith], you may award
punitive damages against ________________________ (name
of principal or employer party against whom [vicarious] liability for
punitive damages is asserted) if:
[(A)] (a) ________________________
(name of agent or employee) was acting in the scope of [his] [her]
employment [by] with ________________________ (name
of principal or employer party against whom liability for punitive
damages is asserted) and had sufficient discretionary or policymaking
authority to speak and act for [him] [her] [it] with regard to the
conduct at issue, independently of higher authority; [or if ]
[(B)] (b) ________________________ (name
of principal or employer party against whom liability for punitive
damages is asserted) in some [other] way [authorized,] [participated
in] [or] [ratified] the conduct of ________________________
(name of agent[/] or employee).]
[[3.]
If you find that the conduct of the
________ (agents or employees), taken as a whole, showed that
___________________ (name of principal or employer against
whom liability for punitive damages is asserted) was [malicious]
[willful] [reckless] [wanton] [or] [in bad faith] you may award
punitive damages against _______________ (name of principal
or employer party).]
(Definitions)
Malicious conduct is the intentional doing of a wrongful
act with knowledge that the act was wrongful.
Willful conduct is the intentional doing of an act with
knowledge that harm may result.
Reckless conduct is the intentional doing of an act with
utter indifference to the consequences. When there is a high risk
of danger, conduct that breaches the duty of care is more likely to
demonstrate recklessness.
Wanton conduct is the doing of an act with utter
indifference to or conscious disregard for a person’s [rights] [safety].
(Conclusion)
Punitive damages are awarded for the limited purposes
of punishment and to deter others from the commission of like
offenses. The amount of punitive damages must be based on reason
and justice taking into account all the circumstances, including
the nature and enormity of the wrong and such aggravating and
mitigating circumstances as may be shown. The property or wealth
of the defendant is a legitimate factor for your consideration.
The amount awarded, if any, must be reasonably related to
the injury and to any damages given as compensation and not
disproportionate to the circumstances.
USE NOTE
This instruction provides a general framework for a
punitive damage instruction usable in any civil action involving
[direct or vicarious] claims for punitive damages. Some other
chapters of UJI Civil contain punitive damage instructions
specifically applicable to particular causes of action which should
be used where appropriate. See, e.g., UJI 13861 (contracts [and
UCC sales]) and 131718 NMRA (insurance bad faith).
This instruction is divided into sections by [italicized]
headers and numbers for ease of reference in these use notes. The
headers and numbers should not be included in the instruction
as given to the jury, although some form of numbering may be
helpful if there are multiple claims for punitive damages. Within
each section, bracketed language should be selected as appropriate.
The sections labeled Introduction and Conclusion should
always be given. UJI 131832 NMRA must be given following
this instruction if the bracketed reference to nominal damages is
included in the “Introduction”. Where the case includes a claim for
punitive damages [on a theory of direct liability, the section labeled
“Direct liability”] against an individual who directly injured the
plaintiff, Paragraph 1 should be given. [Where the case includes
a claim for punitive damages on a theory of vicarious liability, the
section labeled “Vicarious liability” should be given]. Paragraph
(2)(a) applies when the person who directly injured the plaintiff
had sufficient discretionary or policy-making authority to speak
or act for the principal or employer with regard to the conduct at
issue. Paragraph 2(b) applies when the person who directly injured
the plaintiff did not have sufficient authority, but the principal or
employer authorized, ratified or participated in the act. Paragraph
3 applies when the cumulative conduct of the agents or employees
show that the principal or employer had a culpable mental state,
irrespective of whether the party who directly harmed the plaintiff
had a culpable mental state. Grassie v. Roswell Hosp. Corp., 2011NMCA-024, 150 N.M. 283, 258 P.3d 1075; see also Clay v.
Ferrellgas, Inc., 118 N.M. 266, 881 P.2d 11 (1994). The description
of agents or employees can include specific names, if available,
categories of agents or employees, or generic references to agents
or employees. Depending on the facts and pleadings, [both direct
and vicarious claims] more than one claim for punitive damages
may be included in the same case, against the same or different
parties. [Subparagraphs A and B of the Vicarious Liability section
should be given as appropriate, unless] Portions of Paragraphs 2
and 3 may not need to be given if the court determines that the
elements addressed in these subparagraphs (scope of authority and
managerial capacity, or authorization, participation, ratification)
have been established as a matter of law. Appropriate entries from
the “Definitions” section should be given depending on whether
the offending conduct is alleged to be malicious, willful, reckless,
etc.
Separate verdicts must be used for punitive damages when
there is more than one party against whom punitive damages are
sought.
In an unusual or complex case, it may be appropriate to
modify this general form of instruction to instruct the jury clearly
and correctly on the law. See Committee Commentary.
[Adopted, effective November 1, 1991; as amended, effective
July 1, 1998; as amended by Supreme Court Order 088300021,
effective September 10, 2008; as amended by Supreme
Court Order No. _______________________, effective
______________________.]
Committee commentary.— Punitive damages cannot
be [recovered] awarded without [a] the recovery of other
compensatory damages or nominal damages (where the cause of
action does not require proof of actual damages). In a negligence
action, punitive damages cannot be awarded without recovery of
compensatory damages. In other actions, an award of nominal
damages may be sufficient to support a recovery of punitive
damages. See, e.g., Sanchez v. Clayton, 117 N.M. 761, 767, 877
P.2d 567, [673] 573 (1994); UJI 13-1832 NMRA [Hudson v.
Otero, 80 N.M. 668, 459 P.2d 830 (1969); Montoya v. Moore,
77 N.M. 326, 422 P.2d 363 (1967); Crawford v. Taylor, 58 N.M.
340, 270 P.2d 978 (1954)]. [The standard] Standards for
an award of punitive damages [vicariously] against an [employer
or] principal or employer [is] are addressed in Albuquerque Concrete
Coring Co. v. Pan Am World Services, Inc., 118 N.M. 140, 879 P.2d
772 (1994); Clay v. Ferrellgas, Inc., 118 N.M. 266, 881 P.2d 11
(1994); Brashear v. Baker Packers, 118 N.M. 581, 883 P.2d 1278
(1994); Rhein v. ADT Automotive, Inc., 1996NMSC066, 122
N.M. 646, 930 P.2d 783 [(1996)]; and Grassie v. Roswell Hosp.
Corp., 2011-NMCA-024, 150 N.M. 283, 258 P.3d 1075.
The [bracketed phrases] definitions section of this
instruction which [describe] describes the types of conduct giving
rise to punitive damages [are] is disjunctive; if, for example, a
defendant acts recklessly, it is unnecessary to show intentional
misconduct. Greentree Acceptance, Inc. v. Layton, 108 N.M. 171,
[173] 174, 769 P.2d 84, [86] 87 (1989) [; State Farm Gen. Ins.
Co. v. Clifton, 86 N.M. 757, 527 P.2d 798 (1974); see also Jessen
v. National Excess Ins. Co., 108 N.M. 625, 628, 776 P.2d 1244,
1247 (1989)].
The New Mexico Supreme Court in Paiz v. State Farm
Fire & Casualty Co., 118 N.M. 203, 210-213, 880 P.2d 300, 307310 (1994), eliminated gross negligence as a basis for an award
of punitive damages for contract claims. Following the decision
in Paiz, the committee recommended that gross negligence be
removed as a basis for punitive damages in both contract and tort
cases. This recommendation was adopted by the New Mexico
Supreme Court in 1998.
[The] In 1994, Supreme Court held [in Clay v. Ferrellgas,
Inc., 118 N.M. 266, 881 P.2d 11 (1994),] that the risk of danger
posed by the product or the tortfeasor’s conduct is a valid
consideration in determining whether the conduct rises to the
level of recklessness necessary to show a culpable mental state. See
Clay, 118 N.M. at 269, 881 P.2d at 14. Thus, as the risk of danger
increases, conduct that amounts to a breach of duty is more likely
to establish the requisite culpable mental state to support an award
of punitive damages. Id.
When [Punitive] punitive damages are awarded by a jury
against more than one party, the damages awarded against each
must be separately stated by the jury. Vickrey v. Dunivan, 59 N.M.
90, 94, 279 P.2d 853, 856 (1955).
In some cases it may be appropriate to modify this general
form of instruction to instruct the jury clearly and correctly on
the law. For instance, it may be necessary to specify the kind of
conduct allegedly giving rise to [direct or vicarious] punitive
damages liability against various parties e.g.: “If you find that
the conduct of Truck Driver in his driving of the vehicle leading
up to the accident was reckless or wanton, then you may award
punitive damages against him. If you find that the conduct of
Trucking Company in connection with its screening and hiring of
Truck Driver was reckless or wanton, then you may award punitive
damages against it. Additionally, if you find that the conduct of
Truck Driver was reckless or wanton, you may award punitive
damages against Trucking Company if ....”
[As amended by Supreme Court Order No. _____________,
effective _________________.]
________________________________
Advance Opinions
From the New Mexico Supreme Court and Court of Appeals
Opinion Number: 2013-NMSC-020
Topic Index:
Appeal and Error: Fundamental Error; Remand; and Standard of Review
Attorneys: Effective Assistance of Counsel
Constitutional Law: Double Jeopardy
Criminal Law: Felony Murder; Homicide; Provocation; Shooting Offences;
and Voluntary Manslaughter
Criminal Procedure: Acquittal; Double Jeopardy; New Trial; Sentencing;
and Stare Decisis
Juries: Communication with Court; Impartial Jury;
and Improper Juror Communication
Jury Instructions: Criminal Jury Instructions
Statutes: Interpretation; and Legislative Intent
STATE OF NEW MEXICO,
Plaintiff-Appellee,
versus
BENJAMIN MONTOYA,
Defendant-Appellant
No. 32,279 (filed May 16, 2013)
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
NEIL C. CANDELARIA, District Judge
BENNETT J. BAUER
Acting Chief Public Defender
J.K. THEODOSIA JOHNSON
Assistant Appellate Defender
Santa Fe, New Mexico
for Appellant
Opinion
Charles W. Daniels, Justice
{1}Criminal prosecutions with multiple
charges arising from a common fact situation often create difficult challenges, both
in evaluating the offenses separately and
in determining whether multiple punishments are permissible or appropriate under
statutory and constitutional requirements.
Among the issues we consider in this direct
appeal are two matters of significant precedential value.
{2} One issue involves the interrelationship
between the theoretically separate offenses
of causing great bodily harm to a person by
shooting at a motor vehicle and the homicide resulting from the penetration of the
same bullet into the same person. We hold
GARY K. KING
Attorney General
RALPH E. TRUJILLO
Assistant Attorney General
Santa Fe, New Mexico
for Appellee
that current New Mexico jurisprudence
precludes cumulative punishment for both
crimes, and we therefore overrule State v.
Gonzales, 113 N.M. 221, 824 P.2d 1023
(1992), and the cases that have followed it,
including the divided opinions in State v.
Dominguez, 2005-NMSC-001, 137 N.M.
1, 106 P.3d 563, and State v. Riley, 2010NMSC-005, 147 N.M. 557, 226 P.3d 656.
{3} In addition, we hold that in a felony
murder prosecution where the evidence
will support a conviction for either seconddegree murder or voluntary manslaughter, it
is fundamental error for the felony murder
essential elements jury instruction to omit
the defining requirement that the accused
did not act in the heat of passion as a result
of the legally adequate provocation that
would reduce murder to manslaughter.
http://www.nmcompcomm.us/
I.BACKGROUND
A.Facts
{4} This case, like all too many that come
before our courts, erupted from a toxic mixture of testosterone and guns. On the evening of July 15, 2007, Defendant Benjamin
Montoya, his girlfriend, his seventeen-yearold brother, and several companions were
gathered in the front yard of Defendant’s
family home. Defendant’s parents were
inside the house. A group of young men in
a Cadillac automobile drove by, honking,
yelling “Brewtown” (an Albuquerque gang
name), and displaying gang signs. At least
some of Defendant’s group belonged to a
rival gang, the Northside Locos.
{5}A few minutes later, the Cadillac returned and, along with a Ford Expedition
and a third car, stopped at a nearby vacant
lot. When the occupants continued yelling
“Brewtown” and called Defendant’s group
over, Defendant and his friends started
walking toward the vacant lot to confront
approximately fifteen people who got out
of the three stopped cars. Guns were pulled
on both sides, and Defendant’s brother was
severely wounded by gunshots to his leg and
abdomen. One of the Brewtown group also
was shot.
{6} Defendant and his friends retreated to
his home, dragging Defendant’s brother to
their driveway. The Brewtown group briefly
chased Defendant and his friends before going back to their cars. The three cars initially
left the area, but the Expedition turned
around and came back toward Defendant’s
house. The person who had been shooting
at Defendant and his friends was in the
Expedition. When Defendant’s mother saw
the Expedition approach and saw gunfire
coming out of the car, she yelled, “Here they
come and they’re still shooting.”
{7}Defendant ran into his house and
retrieved an AK-47 rifle. While his friends
were trying to help his brother in the
driveway and stop the bleeding from the
gunshot wounds, Defendant ran outside
and began shooting at the Expedition. The
driver, victim Diego Delgado, was shot
seven times and died of multiple gunshot
wounds, including one shot to the back of
the head.
B.Proceedings
{8}Among the nine felony counts on
which Defendant was indicted, including
shooting at a motor vehicle resulting in great
bodily harm, was a homicide count charging
a theory of deliberate first-degree murder
of Diego Delgado or, in the alternative, a
theory of first-degree felony murder, which
was explained in the jury instructions as
predicated on the felony of shooting at a
motor vehicle.
{9} At the conclusion of the trial, the jurors
were given elements instructions on deliberate first-degree murder, with step-down instructions to consider second-degree murder
if they could not find first-degree murder
and then to consider voluntary manslaughter if they could not find second-degree
murder. After those instructions, the jurors
were next instructed to consider a separate
theory of felony murder committed “during the commission of Shooting at a Motor
Vehicle.” While the second-degree murder
instruction submitted as a step-down alternative to deliberate first-degree murder
included the essential provocation element
that distinguishes murder from manslaughter, the felony murder instruction made no
reference to the provocation element, and
the jury was not instructed in any other
fashion that lack of sufficient provocation
was an element of felony murder.
{10} During its deliberations, the jury sent
out a note to the court: “We need some
clarification on whether we must find guilty
or not guilty on felony murder if we have
already decided on manslaughter.” With
the acquiescence of trial counsel, the court
wrote a response that simply quoted the
wording of an instruction previously given
to the jury: “Each crime charged in the indictment should be considered separately.”
No further response was given to the jury’s
question.
{11} The jury ultimately returned verdicts
finding Defendant guilty of both voluntary
manslaughter, as a lesser included offense
of first-degree deliberate murder, and firstdegree felony murder based on the felony of
shooting into a motor vehicle, in addition to
a separate conviction of shooting at a motor
vehicle resulting in great bodily harm. The
district court vacated the voluntary manslaughter and shooting at a motor vehicle
convictions, leaving only the first-degree
felony murder conviction, as required by
New Mexico double jeopardy jurisprudence
establishing that cumulative punishment
may not be imposed for both felony murder
and its lesser included predicate felony, see
State v. Frazier, 2007-NMSC-032, ¶¶ 1, 40,
142 N.M. 120, 164 P.3d 1; see also id. ¶ 72
(Chávez, J., specially concurring), and that
multiple homicide convictions may not be
imposed on a defendant for a single death,
see State v. Santillanes, 2001-NMSC-018, ¶
5, 130 N.M. 464, 27 P.3d 456.
{12} Raising a number of issues, Defendant
appealed his convictions and life sentence
directly to this Court. See N.M. Const. art.
VI, § 2 (“Appeals from a judgment of the
district court imposing a sentence of death
or life imprisonment shall be taken directly
to the supreme court.”); accord Rule 12102(A)(1) NMRA.
II.DISCUSSION
A.Because Lack of Provocation Was an
Essential Element That
Distinguished Felony Murder from
Voluntary Manslaughter, Failure to
So Instruct the Jury Was
Fundamental Error
{13} We first address whether Defendant’s
conviction for felony murder should be
reversed because the felony murder essential elements jury instruction omitted
any reference to the concept of legally
sufficient provocation that distinguishes
heat-of-passion voluntary manslaughter
from cold-blooded second-degree murder.
{14}Because Defendant’s trial counsel
made no objection to the jury instruction,
we review for fundamental error. See State
v. Osborne, 111 N.M. 654, 662, 808 P.2d
624, 632 (1991) (explaining that the failure
to instruct the jury on the essential elements
of an offense may constitute fundamental
error, even if the defendant failed to object
to an inadequate instruction). Under fundamental error review, we will not reverse
the jury verdict unless it is necessary to
prevent a “miscarriage of justice.” State v.
Silva, 2008-NMSC-051, ¶ 13, 144 N.M.
815, 192 P.3d 1192 (internal quotation
marks and citation omitted). In applying
the fundamental error analysis to deficient
jury instructions, we are required to reverse
when the misinstruction leaves us with “no
way of knowing whether the conviction was
or was not based on the lack of the essential
element.” State v. Swick, 2012-NMSC-018,
¶¶ 46, 58, 279 P.3d 747 (holding that it
was fundamental error to fail to instruct on
the second-degree murder element of lack
of sufficient provocation). In this case, it is
highly likely that the felony murder guilty
verdict was based on the lack of an essential
element in the definitional jury instruction.
{15}Under New Mexico law, felony
murder is a second-degree murder that is
elevated to first-degree murder when the
murder was committed during the commission or attempted commission of some
other dangerous felony. See NMSA 1978,
§ 30-2-1(A)(2) (1994); Frazier, 2007NMSC-032, ¶ 8 (observing that “in order
to convict a defendant of felony murder, the
State must prove that the defendant had a
culpable state of mind sufficient to support
a conviction for second-degree murder”).
Accordingly, a determination of whether
an accused has committed felony murder
necessarily requires a factfinder to determine
whether the accused has committed seconddegree murder; simply stated, if there is
no second-degree murder, there can be no
felony murder.
{16} The Legislature has textually defined
second-degree murder as excluding killings
committed in the heat of passion:
Unless he is acting upon sufficient provocation, upon a sudden
quarrel or in the heat of passion,
a person who kills another human
being without lawful justification
or excuse commits murder in the
second degree if in performing
the acts which cause the death
he knows that such acts create a
strong probability of death or great
bodily harm to that individual or
another.
Section 30-2-1(B). A heat-of-passion intentional killing, defined as “the unlawful
killing of a human being without malice . . .
committed upon a sudden quarrel or in the
heat of passion,” is punishable as the lesser
offense, voluntary manslaughter. NMSA
1978, § 30-2-3(A) (1994).
{17} Mitigation of a killing from murder
to manslaughter requires legally sufficient
“provocation,” defined in our Uniform Jury
Instructions and case law as “any action,
conduct or circumstances which arouse
anger, rage, fear, sudden resentment, terror or other extreme emotions” that would
“cause a temporary loss of self control in an
ordinary person.” UJI 14-222 NMRA; see
State v. Stills, 1998-NMSC-009, ¶ 36, 125
N.M. 66, 957 P.2d 51 (discussing sufficient
provocation).
{18}As we recently emphasized in Swick,
2012-NMSC-018, ¶ 48, our Uniform Jury
Instructions explicitly require inclusion of the
essential element of lack of provocation in a
second-degree murder elements instruction
whenever it is an issue the jury should consider. That is why we provide two separate uniform elements instructions for second-degree
murder. One, for use when provocation is in
issue, instructs jurors that they cannot convict
of second-degree murder unless they find that
the defendant “did not act as a result of sufficient provocation.” UJI 14-210 NMRA. The
other, which the use notes caution is “to be
used only when second degree murder is the
lowest degree of homicide to be considered by
the jury,” makes no reference to the provocation element. UJI 14-211 NMRA n.1.
{19} Whether Defendant’s killing of Diego
Delgado was committed upon a sudden
quarrel or in the heat of passion was very
much at issue in this case, as reflected in
the district court’s instructions that the jury
must consider voluntary manslaughter in
the stepdown from deliberate first-degree
murder, the alternative to felony murder.
The jury would have been justified in finding that the sudden violent attack aroused
anger, rage, fear, sudden resentment, terror
or other extreme emotions in Defendant,
particularly in light of the evidence that
his brother had just been shot and that a
car containing armed assailants was bearing down on Defendant, his family home,
and his wounded brother. We recognize
that there will be situations in which a
defendant’s own misconduct may preclude
a provocation instruction. See, e.g., State
v. Gaitan, 2002-NMSC-007, ¶ 13, 131
N.M. 758, 42 P.3d 1207 (holding that “the
law does not permit one who intentionally
instigates an assault on another to then rely
on the victim’s reasonable response to that
assault as evidence of provocation sufficient
to mitigate the subsequent killing of the
victim from murder to manslaughter”); State
v. Munoz, 113 N.M. 489, 827 P.2d 1303
(Ct. App. 1992) (recognizing that “a defendant cannot pose a threat to the victim and
then rely on the victim’s response as a legal
provocation”), cert. denied, Munoz v. State,
113 N.M. 352, 826 P.2d 573 (1992). This
case does not present any such concerns.
There was ample evidence that victim Diego
Delgado’s provocative conduct against Defendant and his family was not the result of
any felonious behavior on Defendant’s part
and that the provocative conduct occurred
before Defendant committed the predicate
felony of shooting into the victim’s car.
{20}But despite the fact that the jury
instructions properly contained the essential element of lack of provocation in the
second-degree instruction that was given as
a lesser included offense of deliberate firstdegree murder, the provocation element
was omitted from the essential elements of
second-degree murder in the separate felony
murder instruction. The omission may well
have been the result of the failure of our
felony murder Uniform Jury Instruction to
address all second-degree murder essential
elements, including specifically the element
of lack of provocation where that may be in
issue, an omission which we now request our
Committee on Uniform Jury Instructions
for Criminal Cases to address. Compare
UJI 14-210 (second-degree murder, which
includes lack of provocation as an essential
element), with UJI 14-202 NMRA (felony
murder, which makes no reference to the
element of lack of provocation). There was
no other instruction given which would
have informed the jury in any way that lack
of provocation was as much an element of
second-degree murder as an included offense
of felony murder as it was of stand-alone
second-degree murder.
{21} Failure to include this important distinction between second-degree murder and
voluntary manslaughter under the facts of
this case was fundamental error. See Swick,
2012-NMSC-018, ¶¶ 55-56, 58 (holding
that it was fundamental error to fail to
instruct the jury that the state had the burden of proving beyond a reasonable doubt
that the defendant did not act as a result
of sufficient provocation in order to return
a second-degree murder conviction where
heat of passion was at issue). We therefore
must reverse Defendant’s conviction for
felony murder.
B.The Double Jeopardy Clause
Precludes Defendant’s Retrial for
Felony Murder as a Result of the
Jury’s Verdict Acquitting Him of
Second-Degree Murder and Finding
Him Guilty of Voluntary
Manslaughter Instead
{22}The jury’s separate verdicts finding
Defendant guilty of (1) heat-of-passion
voluntary manslaughter rather than seconddegree murder and (2) first-degree felony
murder for the same homicide raise a double
jeopardy issue, “a question of law, which
we review de novo.” State v. Saiz, 2008NMSC-048, ¶ 22, 144 N.M. 663, 191 P.3d
521, abrogated on other grounds by State v.
Belanger, 2009-NMSC-025, ¶ 36 n.1, 146
N.M. 357, 210 P.3d 783.
{23} The Double Jeopardy Clause of the
United States Constitution guarantees:
“[N]or shall any person be subject for the
same offense to be twice put in jeopardy of
life or limb.” U.S. Const. amend. V. This
terse prohibition often presents difficulties in analysis, in part because it has been
held to incorporate a broad and general
collection of protections against several
conceptually separate kinds of harm: (1)
“a second prosecution for the same offense
after acquittal,” (2) “a second prosecution
for the same offense after conviction,” and
(3) “multiple punishments for the same
offense.” Swafford v. State, 112 N.M. 3, 7,
810 P.2d 1223, 1227 (1991) (citing North
Carolina v. Pearce, 395 U.S. 711, 717
(1969)). The issue we address here relates to
the first of those protections, reprosecution
after an acquittal.
{24}Had the State submitted only the
felony murder theory of homicide to the
jury, our holding that the elements instruction failed to include an accurate and
complete definition of the lesser included
offense of second-degree murder would
result in a remand for retrial. See Swick,
2012-NMSC-018, ¶ 58 (remanding for a
new trial as a result of a missing provocation
element in a second-degree murder instruction). The same would be the case if the jury
had returned only a general verdict of guilty
of first-degree murder, without specifying
whether the verdict was based on a felony
murder or a deliberate murder theory. See
State v. Mailman, 2010-NMSC-036, ¶ 12,
148 N.M. 702, 242 P.3d 269 (holding that
“a conviction under a general verdict must
be reversed where it is based on more than
one legal theory and at least one of those
theories is legally, as opposed to factually,
invalid”).
{25} But in this case we know that the jury
actually deliberated and decided whether
Defendant committed second-degree
murder as a lesser included offense of the
alternative theory of first-degree murder. The
jury, properly instructed on the distinction
between second-degree murder and voluntary manslaughter and instructed to consider
voluntary manslaughter only if it could not
convict of second-degree murder, effectively
acquitted Defendant of second-degree murder by convicting Defendant of the lesser
offense of voluntary manslaughter instead.
See State v. Lynch, 2003-NMSC-020, ¶ 10,
134 N.M. 139, 74 P.3d 73 (discussing the
American doctrine that a conviction of a
lesser included offense is an implied acquittal
of the greater offense that was considered by
the same factfinder); id. ¶ 37 (Maes, C.J.,
dissenting but agreeing that the Double
Jeopardy Clause of the New Mexico Constitution, Article II, Section 15, incorporates
the implied acquittal doctrine). And because
“acquittal of a lesser offense necessarily included in a greater offense bars a subsequent
prosecution for the greater offense,” State v.
Tanton, 88 N.M. 333, 335, 540 P.2d 813,
815 (1975), Defendant’s acquittal of seconddegree murder, a lesser included offense of
felony murder, bars a subsequent trial for the
greater offense of felony murder.
{26} Submitting separate verdict forms for
the two alternative theories of first-degree
murder and requiring the jury to return both
verdicts in this case was a commendable approach by the trial judge, making it possible
for both the trial court and a reviewing court
to know exactly what the jury did and did
not determine and thereby minimizing the
need to submit the case to a second jury in
the event of a reversible error in connection
with one of the alternative theories.
{27}We therefore hold that Defendant,
having been acquitted of second-degree
murder, is constitutionally protected from
further prosecution for that offense, whether
in a stand-alone count, as a stepdown
from deliberate first-degree murder, or as
a component of felony murder. See Ashe v.
Swenson, 397 U.S. 436, 446 (1970) (holding
that collateral estoppel is a constitutional
component of double jeopardy protection in criminal cases and that, after a jury
determines a factual issue against the state,
the state may not bring a defendant before
a new jury to litigate the same issue again).
C.Defendant May Not Be Punished
Cumulatively for Both Manslaughter
and Causing Great Bodily Harm by
Shooting at a Motor Vehicle Where
Both Convictions Are Based on the
Same Shooting of the Same Victim
{28} Because we must vacate Defendant’s
felony murder conviction, we next consider
reinstating the two convictions the district
court vacated solely because Defendant
was also convicted of felony murder, the
convictions of voluntary manslaughter and
bodily harm. Defendant argues, however,
that reinstatement of both convictions for
the act of shooting a single victim would
constitute double jeopardy of the third type,
multiple punishment for the same offense.
{29} Honoring the law’s protection against
multiple punishments for “the same offense” is one of the most vexing challenges
of double jeopardy jurisprudence. See, e.g.,
Albernaz v. United States, 450 U.S. 333, 343
(1981) (observing that “the decisional law
in the area is a veritable Sargasso Sea which
could not fail to challenge the most intrepid
judicial navigator”). In addition to requiring
a narrow and mechanical analysis of generic
statutory elements, the inquiry often calls
for a broader and substantially more complex search for indicia of legislative intent in
the context of particular cases. See Swafford,
112 N.M. at 13, 810 P.2d at 1233 (noting
that when a defendant’s conduct violates
more than one statute, the courts must
determine whether the Legislature intended
multiple punishments). Determinations
of legislative intent, like double jeopardy,
present issues of law that “are reviewed de
novo, with the ultimate goal of such review
to be facilitat[ing] and promot[ing] the
legislature’s accomplishment of its purpose.”
State v. Tafoya, 2012-NMSC-030, ¶ 11, 285
P.3d 604 (alterations in original) (internal
quotation marks and citation omitted).
{30} We agree with the State’s concession
on appeal that Defendant’s act of shooting
the driver of the Expedition was the common factual basis for both the shooting
into the motor vehicle and the voluntary
manslaughter convictions, and his culpable
conduct was therefore “unitary.” See Gonzales, 113 N.M. at 224, 824 P.2d at 1026
(concluding that the firing of “multiple gun
shots into [the victim’s vehicle] in rapid
succession” constituted unitary criminal
conduct). If Defendant were challenging
multiple convictions under the same statute,
our determination of unitary conduct would
require the conclusion that the Double
Jeopardy Clause prohibits multiple punishment, without any further analysis on our
part. State v. Gallegos, 2011-NMSC-027,
¶ 33, 149 N.M. 704, 254 P.3d 655 (“[I]
f the defendant was charged with multiple
violations of the same statute, a unit-ofprosecution case, then the only question to
be answered in determining whether two
charges are the ‘same offense’ is whether the
defendant’s conduct underlying each charge
was part of the ‘same act or transaction’ as
defined by the legislature.” (alteration in
original) (internal quotation marks and
citation omitted)). But because this is a
“double-description case, where the same
conduct results in multiple convictions
under different statutes,” we must go further
before our analysis is complete. Swick, 2012NMSC-018, ¶ 10.
{31}The easiest step in the doubledescription analysis is to conduct the strict
elements test established by the United
States Supreme Court more than 80 years
ago to determine in the abstract whether
each statutory offense “‘requires proof of
a fact which the other does not.’” Id. ¶
12 (quoting Blockburger v. United States,
284 U.S. 299, 304 (1932)). “If that test
establishes that one statute is subsumed
within the other, the inquiry is over and the
statutes are the same for double jeopardy
purposes—punishment cannot be had for
both.” Swafford, 112 N.M. at 14, 810 P.2d
at 1234. Although the Blockburger test has
the virtue of simplicity, it has been justly
criticized as a “mechanical test that compares
statutory elements and is only sometimes
related to substantive sameness.” George C.
Thomas III, A Blameworthy Act Approach to
the Double Jeopardy Same Offense Problem,
83 Calif. L. Rev. 1027, 1028 (1995).
{32} In this case, as in many of the more
difficult double punishment cases involving
different statutes, Blockburger’s simplistic
elements test provides no final resolution.
Neither the manslaughter statute nor the
shooting into a motor vehicle statute is
definitionally subsumed within the other;
only the offense of manslaughter requires
the death of a human being, and only the of-
fense of shooting at a motor vehicle resulting
in great bodily harm requires that the harm
to the victim be the result of shooting into
a vehicle. We therefore must proceed to the
most challenging step of the double jeopardy analysis, trying to determine whether the
Legislature intended to impose cumulative
punishment for unitary conduct violating
two statutes that survive the Blockburger
elements test. In doing so, “we must turn to
traditional means of determining legislative
intent: the language, history, and subject
of the statutes,” and we “must identify the
particular evil sought to be addressed by
each offense.” Swafford, 112 N.M. at 14,
810 P.2d at 1234. “If several statutes are
not only usually violated together, but also
seem designed to protect the same social
interest, the inference becomes strong that
the function of the multiple statutes is only
to allow alternative means of prosecution.”
Id.
{33} The Legislature is the branch of government constitutionally vested with the
authority to define criminal offenses and
prescribe permissible punishment for their
violation, and it is the duty of the judicial
branch to attempt to discern and effectuate
the legislative will. See, e.g., State v. Martinez, 1998-NMSC-023, ¶ 14, 126 N.M 39,
966 P.2d 747 (“It is the duty of the judiciary,
in implementing the directives of the Legislature, to exercise reason and ensure that
the ends of justice are met.”); State ex rel.
Helman v. Gallegos, 117 N.M. 346, 353, 871
P.2d 1352, 1359 (1994) (“[W]e believe it to
be the high duty and responsibility of the
judicial branch of government to facilitate
and promote the legislature’s accomplishment of its purpose.”). Unfortunately, the
Legislature rarely provides textual guidance
on its wishes regarding cumulative or alternative punishment. In the absence of explicit legislative direction, determining what
the Legislature intended—or perhaps more
accurately, what the Legislature most likely
would have intended had it contemplated
the potential overlap between particular
statutes—is a task for which there is no
simple test. The problem is exacerbated by
the ever increasing number and complexity
of criminal statutes:
[A]t common law, and under
early federal criminal statutes,
offense categories were relatively
few and distinct. A single course
of criminal conduct was likely to
yield but a single offense. In more
recent times, with the advent of
specificity in draftsmanship and
the extraordinary proliferation of
overlapping and related statutory
offenses, it became possible for
prosecutors to spin out a startlingly
numerous series of offenses from a
single alleged criminal transaction.
Ashe, 397 U.S. at 445 n.10 (citation omitted).
{34}This Court has been wrestling with
the double jeopardy concerns raised by
the substantial overlap between the two
specific statutes in this case for more than
two decades. We have always recognized that
the preliminary and simplistic Blockburger
elements test did not provide a final answer
to the substantive sameness question, but we
have had increasing difficulty reconciling
past legislative intent analyses of these statutes with the application of our developing
double jeopardy jurisprudence to various
other statutes.
{35} Our first consideration of the overlap
between these two statutes was in Gonzales,
113 N.M. at 225, 824 P.2d at 1027, where
we upheld convictions for both first-degree
murder and causing great bodily harm by
shooting at a motor vehicle, based on the
unitary conduct of fatally shooting a victim
sitting in a car. The three justices who spoke
for the Gonzales Court relied primarily on
a narrow Blockburger statutory elements
analysis, noting that the “murder statute
requires proof of the unlawful killing of a
human being” while the “shooting at an occupied motor vehicle statute requires proof
of discharging a firearm at an occupied
vehicle but does not require the killing of
a human being.” Gonzales, 113 N.M. at
224-25, 824 P.2d at 1026-27.
{36} In a brief application of the Swafford
nontechnical legislative intent analysis, this
Court concluded, seven months after Swafford, that the two statutes were intended to
address different social evils, reasoning that
the murder statute was intended to address
unlawful killing of people and the shooting
at a motor vehicle statute was “more narrowly designed to protect the public from
reckless shooting into a vehicle and the
possible property damage and bodily injury
that may result.” Gonzales, 113 N.M. at 225,
824 P.2d at 1027. After noting that although
the statutes “may be violated together, they
are not necessarily violated together,” and
that “punishment for a violation of either
statute is not enhanced for a violation of the
other statute,” the Court concluded that a
defendant could be cumulatively punished
both for first-degree murder and for causing
great bodily harm by shooting into a motor vehicle, based on the same physical act,
without violating double jeopardy protections. Id.
{37}Thirteen years after Gonzales, this
Court found itself sharply divided over the
continued viability of that holding. The
three-justice Dominguez majority reaffirmed
Gonzales and its rationales in affirming convictions for both voluntary manslaughter
and causing great bodily harm by shooting
into a motor vehicle. See Dominguez, 2005NMSC-001, ¶¶ 8, 14, 16. Two justices
authored separate dissents, primarily on
the grounds that (1) the Gonzales holding
had been undermined by the holding in
Santillanes and other post-Gonzales cases
recognizing the double jeopardy principle
that “for a single death, there can be only
one conviction” and (2) Gonzales was inconsistent with more recent developments
in New Mexico double jeopardy jurisprudence. See Dominguez, 2005-NMSC-001,
¶ 28 (Bosson, C.J., concurring in part and
dissenting in part); id. ¶ 37 (Chávez, J.,
dissenting).
{38}We next confronted essentially the
same issue in Riley. Once again this Court
was unable to reach a consensus, but this
time three justices wrote separately to
express their concerns that Gonzales was
increasingly out of step with New Mexico
double jeopardy jurisprudence. See Riley,
2010-NMSC-005, ¶ 39 (Chávez, C.J.,
specially concurring); id. ¶ 44 (Bosson, J.,
concurring in part and dissenting in part);
id. ¶ 46 (Daniels, J., specially concurring).
The four opinions in Riley made it clear
that if defense counsel had met this Court’s
requirements for challenging a binding
precedent and seeking to overcome the
principle of stare decisis, the continued viability of Gonzales would have been in grave
doubt. See Riley, 2010-NMSC-005, ¶¶
32-35 (plurality opinion of Serna, J., joined
by Maes, J.) (noting that counsel had not
identified or argued precedent-overruling
principles); id. ¶¶ 39-43 (Chávez, C.J.,
specially concurring) (noting continued
disagreement with Gonzales and Dominguez but declining to “overturn controlling
precedent . . . [without] benefit of full briefing and argument on the relevant factors”
for doing so); id. ¶¶ 44-45 (Bosson, J.,
concurring in part and dissenting in part)
(reiterating disagreement with Gonzales
and Dominguez and observing that the
challenge to those precedents “would best
be initiated by the parties themselves and
not by this Court acting sua sponte); id. ¶¶
46-49 (Daniels, J., specially concurring)
(expressing the view that “the Legislature did
not intend to punish a person cumulatively
for both crimes, simply because a bullet
penetrated a motor vehicle before killing its
intended victim” but joining in affirmance
on grounds of stare decisis because a case had
not been made for overruling established
precedent).
{39} In this case, Defendant has squarely
raised, briefed, and argued specific reasons
for overruling Gonzales and the cases that
have followed it, particularly Dominguez
and Riley. We therefore must conduct the
jurisprudential analysis that was not called
for in Riley.
{40}When deciding whether to overrule
our own precedents, this Court considers
such common-sense factors as whether
the precedent is “a remnant of abandoned
doctrine,” whether the precedent has proved
to be unworkable, whether changing circumstances have deprived the precedent
of its original justification, and the extent
to which parties relying on the precedent
would suffer hardship from its overruling.
Riley, 2010-NMSC-005, ¶ 34 (plurality
opinion) (internal quotation marks and
citation omitted). When any of those factors
“convincingly demonstrates that a past decision is wrong, the Court has not hesitated
to overrule even recent precedent.” State v.
Pieri, 2009-NMSC-019, ¶ 21, 146 N.M.
155, 207 P.3d 1132 (internal quotation
marks and citation omitted).
{41} In order to afford due respect to the
principles of stare decisis and to conduct
a principled reconsideration of Gonzales’s
continued precedential soundness, we begin
with a thorough review of the more significant developments in our double jeopardy
jurisprudence during the two decades since
Gonzales was decided.
{42}In State v. Contreras, nearly four years
after Gonzales, this Court applied Swafford
and unanimously held for the first time that
when “one’s conduct is unitary, one cannot
be convicted of and sentenced for both
felony murder and the underlying felony.”
Contreras, 120 N.M. 486, 491, 903 P.2d
228, 233 (1995) (overruling the contrary
precedent of State v. Stephens, 93 N.M. 458,
463, 601 P.2d 428, 433 (1979)). We later
took the analysis a step further and held
that the Legislature did not intend that dual
convictions for both felony murder and its
predicate felony be imposed in any case,
without the need for a particularized caseby-case unitary conduct analysis. Frazier,
2007-NMSC-032, ¶¶ 4, 11, 35 (addressing felony murder and kidnapping). Both
Contreras, 120 N.M. at 491, 903 P.2d at
233, and Frazier, 2007-NMSC-032, ¶ 26,
were based on reasoned inferences of what
punishment the Legislature intended, in the
absence of explicit legislative direction.
{43}The reasoning underlying Gonzales
was substantially eroded by State v. Cooper
and Santillanes. In Cooper, we recognized
that the Double Jeopardy Clause precluded
dual convictions for felony murder and
second-degree murder in the killing of the
same victim. See 1997-NMSC-058, ¶¶
53, 63, 124 N.M. 277, 949 P.2d 660. In
Santillanes, we held that a defendant could
not be punished separately for vehicular
homicide and child abuse resulting in death,
even though the statutes each contained an
element the other did not have and thereby
passed the Blockburger test. See Santillanes,
2001-NMSC-018, ¶¶ 5, 24. We specifically affirmed the reasoning of the Court
of Appeals “that one death should result in
only one homicide conviction” under New
Mexico law. Id. ¶ 5 (internal quotation
marks and citation omitted).
{44} Even though the dual statutes involved
in both Cooper, 1997-NMSC-058, ¶¶ 5354, 60, and Santillanes, 2001-NMSC-018, ¶
8, required causation of death as an essential
element while one of the two statutes in
this case requires only great bodily harm,
the significance of those two cases is underscored by our holding in State v. Varela,
1999-NMSC-045, 128 N.M. 454, 993 P.2d
1280. Among other convictions appealed by
Varela that arose from his shooting and killing the occupant of a house was a conviction
for the offense of shooting at a dwelling and
causing great bodily harm. See id. ¶ 1. That
crime is defined in a separate provision of
the very statute involved in this case; but
for the differing elements of a dwelling and
a motor vehicle, the two subsections are
identical. Compare NMSA 1978, § 30-38(A) (1993) (shooting at a dwelling), with §
30-3-8(B) (shooting at a motor vehicle). The
defendant in Varela argued that the statutory element of “great bodily harm” could
not be established by proof of a killing. See
Varela, 1999-NMSC-045, ¶ 10. This Court
upheld the conviction by interpreting the
great bodily harm element to include causation of death, in language that is difficult to
reconcile with the reasoning in Gonzales:
[T]he wrong the legislature sought
to remedy [in the first sentence of
Section 30-3-8(A)] is any shooting
at a dwelling or occupied dwelling
[sic]. The next three sentences assign a level of punishment to three
different fact patterns: a shooting
at a dwelling or building that does
not result in great bodily harm; one
that results in injury to another
person; and one that results in great
bodily harm. See § 30-3-8. If we
construe the first sentence accord-
ing to its terms, as prohibiting any
shooting at a dwelling or occupied
building, then the circumstance in
which the shooting results in death
must be viewed as falling into one
of the three levels of punishment.
“[O]ur construction must not
render the statute’s application
absurd, unreasonable, or unjust.”
To construe the statute as not
including situations in which the
victim dies would render Section
30-3-8’s application absurd.
Varela, 1999-NMSC-045, ¶ 13 (second
alteration in original) (internal citation
omitted).
{45} Varela is important in our consideration of Gonzales because it recognized
that death is a part of the harm the Legislature sought to protect against in enacting drive-by shooting offenses. Varela is
equally significant in its recognition that
the drive-by crimes are obviously intended
to protect against threats to personal safety,
and not to threats to property as Gonzales
had proposed. Varela’s interpretation is supported by the fact that penalty gradations
for drive-by shooting, Section 30-3-8(B),
like penalties for other assaultive crimes
contained within the Article Three assault
and battery provisions of the New Mexico
Criminal Code, NMSA 1978, Sections
30-3-1 to -18 (1963, as amended through
2010), are based on differing degrees of potential or actual personal harm to a human
victim, unlike the Article Fifteen property
damage provisions of the Criminal Code,
NMSA 1978, Sections 30-15-1 to -7 (1963,
as amended through 2007), the gradations
of which are based on differing values of
property damaged or stolen. Compare, e.g.,
§ 30-3-4 (battery), and § 30-3-5 (aggravated
battery), and § 30-3-9(E) (battery on a
school employee), and § 30-3-9(F) (aggravated battery on a school employee), with §
30-15-1 (criminal damage to property), and
§ 30-15-1.1 (graffiti damage to property).
{46}Our double jeopardy jurisprudence
has continued to grow away from the historical strict mechanical elements test and
increasingly toward a substantive sameness
analysis. In Gallegos, 2011-NMSC-027, ¶ 1,
we applied our “double jeopardy jurisprudence to multiple conspiracy convictions”
and “set a new course for the future application of double jeopardy principles” by holding that multiple conspiracy convictions
could not be imposed for a single agreement
to violate more than one criminal statute.
In light of double jeopardy concerns and
given the inherent dangers of overcharging,
we recognized that “it is particularly impor-
tant that the judiciary embrace its unique
responsibility to assure the basic fairness and
adherence to legislative intent that only the
courts can afford.” Id. ¶ 47. Accordingly,
we concluded that “a fair inference to draw
from the text, history, and purpose of our
conspiracy statute is that the Legislature
established . . . a rebuttable presumption
that multiple crimes are the object of only
one, overarching, conspiratorial agreement
subject to one, severe punishment set at the
highest crime conspired to be committed.”
Id. ¶ 55.
{47}In State v. Gutierrez, 2011-NMSC024, ¶¶ 52-53, 60, 150 N.M. 232, 258
P.3d 1024, we held that convictions for both
armed robbery of a car and its keys, based
on the forcible seizure of its keys, and the
separate offense of theft of a motor vehicle
constituted double jeopardy. In doing so,
we questioned the continued validity of
State v. McGruder, 1997-NMSC-023,
123 N.M. 302, 940 P.2d 150, abrogated
on other grounds by State v. Chavez, 2009NMSC-035, ¶ 16, 146 N.M. 434, 211 P.2d
891, which had found no double jeopardy
violation where separate convictions were
affirmed for both armed robbery of a set of
car keys and the resulting theft of the motor vehicle for which the keys were taken.
See Gutierrez, 2011-NMSC-024, ¶ 53
(discussing distinguishable conduct in support of the separate charges in McGruder).
Significantly for the present case, we rejected
a mechanical approach that would find no
double jeopardy violation simply because
two statutory offenses had differing elements. See id. ¶ 58. Instead, we expressly
“modified the Blockburger analysis to be used
in New Mexico” and “rejected the . . . strict
elements test.” Swick, 2012-NMSC-018, ¶
21. In a concurring opinion, Justice Bosson
observed that the majority’s inclination to
look beyond abstract theory and consider
concrete realities resulted in the implicit
overruling of McGruder and exemplified
how the Court has been “rethinking some
of the underpinnings of our double jeopardy
jurisprudence.” See Gutierrez, 2011-NMSC024, ¶¶ 73-74, 76, 78 (Bosson, J., specially
concurring).
{48}In Swick, our most recent significant
double jeopardy precedent, we relied on
Gutierrez to overrule State v. Armendariz,
2006-NMSC-036, 140 N.M. 182, 141
P.3d 526, and held that our current double
jeopardy jurisprudence precludes multiple
convictions for both aggravated battery and
attempted murder where both convictions
are based on the unitary conduct of beating
a victim. See Swick, 2012-NMSC-018, ¶¶
19, 21 (overruling Armendariz).
{49} Swick rejected Armendariz’s double
jeopardy statutory analysis, which cited
Gonzales, see Armendariz, 2006-NMSC036, ¶ 25, and proceeded in much the
same way as the two-decade-old Gonzales
analysis of the offenses of homicide and
causing great bodily harm by shooting into
a motor vehicle. See Swick, 2012-NMSC018, ¶¶ 13, 19. Armendariz first applied a
strict Blockburger elements test, determining
that the statute defining attempted murder
requires proof of intent to commit murder,
which is not an element required to prove
aggravated battery, and that the aggravated
battery statute requires an unlawful application of force, which is not an element of
attempted murder. See Armendariz, 2006NMSC-036, ¶¶ 23-24. Armendariz then
used other indicia to justify its holding
that the Legislature had intended to allow
cumulative punishments, see id. ¶¶ 22, 25,
as we described in Swick:
First, . . . attempted murder and
aggravated battery were enacted
to address different social harms,
punishing the state of mind in
attempted murder and punishing
actual harm in aggravated battery.
Second, . . . there was no language
in either statute which indicated
an intent that these crimes were
alternative ways of committing
the same crime. Third, . . . the two
crimes do not necessarily have to
be violated at the same time. In
other words, a defendant can commit attempted murder without
also committing battery.
2012-NMSC-018, ¶ 16 (citations omitted). Swick followed the teachings of
Gutierrez and reaffirmed that a complete
double jeopardy analysis may require looking beyond facial statutory language to the
actual legal theory in the particular case by
considering such resources as the evidence,
the charging documents, and the jury instructions. See Swick, 2012-NMSC-018,
¶¶ 21, 26. “[T]he State proffered the same
testimony to prove the aggravated batteries
as it did to prove the attempted murders,
which was that Swick beat, stabbed, and
slashed” his victims. Id. ¶ 26.
{50} Swick rejected Armendariz’s narrow
view that the two statutes were enacted to
address different social evils, aggravated
battery to protect against bodily injury and
attempted murder to protect against loss of
life:
Both statutes punish overt acts
against a person’s safety but take
different degrees into consideration. The aggravated battery
statute concerns itself with the
intent to harm and the attempted
murder statute concerns itself with
the intent to harm fatally.
Swick, 2012-NMSC-018, ¶ 29.
{51} Swick also reaffirmed the established
principle that lenity applies in cases of
ambiguity regarding the reach of criminal
statutes, “because reasonable minds can differ as to the Legislature’s intent in punishing
the[] two crimes.” Id. ¶ 30.
{52} In light of the significant journey our
double jeopardy jurisprudence has taken
over the past two decades, we conclude
that “time has set its face against” Gonzales’s
doctrinal underpinnings. Mapp v. Ohio, 367
U.S. 643, 653 (1961) (overruling Wolf v.
Colorado, 338 U.S. 25 (1949), because the
line of authority it relied on had evolved).
Gonzales and its progeny reflect a remnant
of abandoned doctrine that has been
deprived of its original justification. “We
conclude that the modifications to double
jeopardy jurisprudence make this Court’s
opinion [in Gonzales] so unworkable as to
be intolerable.” Swick, 2012-NMSC-018,
¶ 19. It is impossible to reconcile in any
principled way the reasoning of Gonzales
with the reasoning of the more recent precedents we have reviewed here. Applying
those precedents and the rule of lenity, we
can no longer conclude that the Legislature
intended that Defendant should receive
more than the maximum punishment it
determined appropriate for either a driveby shooting or a completed homicide,
taking into consideration the relationship
between the statutory offenses and their
common commission by unitary conduct,
the identical social harms to which they are
directed, and their use by the State in this
case to impose double punishment for the
killing of a single victim.
{53} One final stare decisis concern is the
extent to which any prejudice may flow from
any justifiable reliance that has been placed
on Gonzales’s continued application. As we
stated in Swick, “reliance, which is most
important in cases implicating property and
contract rights, and least important in cases
involving procedural and evidentiary rules,
is not present in this case.” Swick, 2012NMSC-018, ¶ 18. “The State could not
have relied on [Gonzales] to its detriment
because the double jeopardy prohibition is
applied at the conclusion of a case to prevent
multiple punishments.” Id.
{54} We therefore expressly overrule State
v. Gonzales, 113 N.M. 221, 824 P.2d 1023
(1992); State v. Dominguez, 2005-NMSC001, 137 N.M. 1, 106 P.3d 563; and State
v. Riley 2010-NMSC-005, 147 N.M. 557,
226 P.3d 656, and hold that the Double
Jeopardy Clause protects Defendant against
being punished both for the homicide of
Diego Delgado and for causing great bodily
harm to Diego Delgado by shooting at a
motor vehicle, where both convictions were
premised on the unitary act of shooting
Diego Delgado. One of the convictions
must be vacated.
D.The More Severely Punishable
Conviction, Shooting at a Motor
Vehicle, Should Be Reinstated
{55}As we recently confirmed in Swick,
2012-NMSC-018, ¶ 31, New Mexico
agrees with the position of other jurisdictions that where one of two otherwise
valid convictions must be vacated to avoid
violation of double jeopardy protections,
we must vacate the conviction carrying the
shorter sentence.
{56} In this case, we therefore must uphold
the conviction for shooting into a motor
vehicle and vacate the conviction for voluntary manslaughter. Compare § 30-2-3(A)
(providing that voluntary manslaughter is a
third-degree felony resulting in the death of
a human being), and NMSA 1978, § 3118-15(A)(7) (2007) (providing a penalty of
six years’ imprisonment for a third-degree
felony resulting in the death of a human
being), with § 30-3-8(B) (providing that
bodily harm is a second-degree felony), and
§ 31-18-15(A)(4) (providing a penalty of
fifteen years’ imprisonment for a seconddegree felony resulting in the death of a
human being). Whatever one’s personal
views may be about the more serious of the
offenses of manslaughter and causing great
bodily harm by shooting into a motor vehicle, principles of separation of powers and
of jurisprudential policy demand adherence
to the principle we confirmed in Swick. As
a matter of separation of powers, it is the
exclusive prerogative of the Legislature, the
law-making branch of our representative
democracy, to determine relative seriousness
and punishment for criminal offenses. And
as a matter of policy, it would be unacceptable for us to hold that where a person’s
criminal conduct would have violated either
of two statutes, a defendant can escape
liability for the one carrying the greater
punishment by committing the crime in
such a manner as to also violate the statute
carrying the lesser penalty. Because the Legislature has determined that causing great
bodily harm by shooting at a motor vehicle
is a higher degree of felony and carries a
more severe potential sentence, we reinstate
Defendant’s conviction for that crime and
preclude reinstatement of his conviction for
voluntary manslaughter.
E.Defendant Was Not Denied His
Right to an Impartial Jury
{57}On the first day of trial testimony,
Defendant’s ex-wife Elizabeth, who had
been his girlfriend at the time of the shooting, took the stand. Elizabeth testified that
she knew a person on the jury, Ms. Romero,
who was best friends with the mother of
Elizabeth’s current boyfriend. The district
judge promptly held a hearing outside the
presence of the jury to permit the court and
counsel to inquire further into the relationship between Elizabeth and Romero and
whether Romero should remain on the jury.
Elizabeth testified that Romero’s friendship and communications about the case
with the mother of her current boyfriend
bothered her. She expressed concern that
Romero had prejudged Defendant because
of his appearance, explaining that after jury
selection, Romero had called the boyfriend’s
mother and told her that Defendant looked
“scary.”
{58} The judge then called Romero in for
questioning. Although Romero insisted that
she could remain fair and open-minded, the
judge agreed with defense counsel that she
should be removed from Defendant’s jury.
{59} Before bringing the remaining jurors
back in the courtroom, the judge learned
that Romero had made negative comments
about Defendant to a potential juror, Ms.
Herrera, who had not been selected for
Defendant’s jury. The judge also questioned
Herrera and determined that she had no
information that anyone else had heard any
of Romero’s comments.
{60}After Herrera was excused from the
courtroom, the judge excused Romero
from Defendant’s jury, dismissed her from
further jury service, and replaced her on
Defendant’s jury with an alternate juror.
The judge brought the jurors back into the
courtroom, questioned them to make sure
they had not been involved in any discussions of the case with anyone, and reminded
them of his admonition not to permit any
such discussions to occur.
{61}Defendant now argues that he was
denied his right to an impartial jury under
the United States and New Mexico Constitutions because of Romero’s bias and its
possible effect on the remainder of the jury.
{62} The Sixth Amendment to the United
States Constitution guarantees the right to
trial by a fair and impartial jury. See State v.
Johnson, 2010-NMSC-016, ¶ 35, 148 N.M.
50, 229 P.3d 523. “The essence of cases
involving juror tampering, misconduct, or
bias is whether the circumstance unfairly
affected the jury’s deliberative process and
resulted in an unfair jury.” State v. Mann,
2002-NMSC-001, ¶ 20, 131 N.M. 459, 39
P.3d 124. A complaining party “must make
a preliminary showing that [he or she] has
competent evidence that material extraneous to the trial actually reached the jury.”
Id. ¶ 19 (alteration in original) (internal
quotation marks and citation omitted).
{63} In this case, there was no such showing. To the contrary, the district court took
immediate steps to remove the misbehaving
juror and ensure that her information had
not reached any jurors who would decide
Defendant’s case. We find no abuse of discretion nor any impairment of Defendant’s
right to a fair and unbiased jury. Id. ¶ 1
(observing that the manner of handling jury
misconduct is left to the sound discretion of
the trial judge). We thus reject Defendant’s
claim of error as a result of the events surrounding former juror Romero’s activities
and communications.
F.Defendant Has Not Established
Ineffective Assistance of Counsel
{64}Defendant claims he was denied
effective assistance of counsel because his
attorney (1) failed to object to the flawed
felony murder jury instructions, (2) failed to
request a mistrial due to the allegedly biased
juror, and (3) may have been ineffective as
a result of counsel’s suspected cocaine use.
We have granted full relief on the merits
of the jury instruction issue as a matter of
fundamental error and have also determined
that there was no error in the district court’s
resolution of the potential juror bias issue.
The record before us is insufficient for us to
address on direct appeal whether there is any
merit in Defendant’s remaining ineffective
assistance claim. See State v. Arrendondo,
2012-NMSC-013, ¶ 44, 278 P.3d 517
(declining to review an ineffective assistance
claim on direct appeal, without prejudice
to a defendant’s right to make an adequate
record and seek relief in the context of a
postconviction habeas corpus proceeding).
III.CONCLUSION
{65} We vacate Defendant’s conviction for
felony murder of Diego Delgado and hold
that he cannot be again placed in jeopardy
for that offense. We reinstate Defendant’s
previously vacated conviction for shooting
at a motor vehicle and causing great bodily
harm to Mr. Delgado. Because it would
constitute double jeopardy to use the same
shooting of the same victim to also punish
Defendant for homicide, we hold that the
manslaughter conviction, the offense with
the lesser penalty, cannot be reinstated. We
reject Defendant’s remaining claims of error
and remand to the district court for entry
of an amended judgment and sentence in
conformity with this Opinion.
{66}IT IS SO ORDERED.
CHARLES W. DANIELS, Justice
WE CONCUR:
PETRA JIMENEZ MAES, Chief Justice
RICHARD C. BOSSON, Justice
EDWARD L. CHÁVEZ, Justice
BARBARA J. VIGIL, Justice
Certiorari Not Applied for
Opinion Number: 2013-NMCA-068
Topic Index:
Appeal and Error: Remand; and Standard of Review
Civil Procedure: Equitable Claims or Defenses; Estoppel; Reconsideration;
Statute of Limitations; and Summary Judgment
Contracts: Breach
Employment Law: Employment Contract; and Health, Pension,
and Retirement Benefits
Insurance Law: Health Insurance; and Reimbursement
Judges: Abuse of Discretion
HILLREY BEGGS, MELVINA LANCASTER CROCKETT, JOSE M. GUTIERREZ,
ARLY V. HAMNER, MIGUEL S. LUCERO, CURTIS WAGNER, GARY WATKINS,
and JIM WOOD,
Plaintiffs-Appellants,
versus
THE CITY OF PORTALES, a municipal corporation,
Defendant-Appellee
No. 31,475 (filed April 30, 2013)
APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY
DREW D. TATUM, District Judge
ERIC D. DIXON
Portales, New Mexico
for Appellants
Opinion
Cynthia A. Fry, Judge
{1} The opinion originally filed in this case
on April 2, 2013, is withdrawn, and this
Opinion is filed in its place. Defendant’s
motion for rehearing is denied.
{2}Plaintiffs, retired employees of the
City of Portales (the City), brought suit
against the City seeking to recover damages
for reduced, and eventually terminated,
health insurance reimbursement payments.
Plaintiffs appeal the district court’s order
granting summary judgment on the basis
that Plaintiffs’ claims were barred by the
applicable statute of limitations. The district
court concluded that Plaintiffs’ claims began
to accrue in 2001 when the City stopped
offering Plaintiffs health insurance coverage
under the City’s group plan and stopped
reimbursing Plaintiffs for seventy-five percent of their health insurance premiums.
Plaintiffs argue on appeal that the statute
RICHARD E. OLSON
REBECCA NICHOLS JOHNSON
HINKLE, HENSLEY, SHANOR
& MARTIN L.L.P.
Roswell, New Mexico
for Appellee
of limitations did not begin to accrue
until the City completely terminated their
health insurance reimbursement payments
in 2005. Alternatively, Plaintiffs argue that
the City should be estopped from asserting
the statute of limitations as a defense due
to its representations upon which Plaintiffs
relied. We affirm the district court’s ruling
insofar as it relates to the City’s alleged
agreements (1) to keep Plaintiffs on the
City’s own health insurance plan, and (2)
to reimburse Plaintiffs seventy-five percent
of their health insurance premiums. We
reverse to the extent that Plaintiffs claim
entitlement to reimbursement amounts
lower than seventy-five percent, which claim
would not have begun to accrue until the
City completely terminated the reimbursement payments in 2005.
BACKGROUND
{3} This is the second appeal in this case. In
Beggs v. City of Portales, 2009-NMSC-023,
¶ 22, 146 N.M. 372, 210 P.3d 798, our
Supreme Court held that the district court
improperly granted summary judgment to
the City because there were genuine issues
of material fact as to whether contractual
rights existed between the City and Plaintiffs that would entitle Plaintiffs to receive
reimbursement payments from the City for
their health insurance premiums. Following
the Supreme Court’s decision, this case was
remanded to the district court, had a brief
interlude in federal court, and was eventually re-filed in state district court. The City
then filed a motion for partial summary
judgment against the eight Plaintiffs who
retired before 2002, arguing that the threeyear statute of limitations under NMSA
1978, Section 37-1-24 (2011), barred their
claims. The district court agreed and granted
the City’s motion for summary judgment.
Plaintiffs referenced in this Opinion are the
eight pre-2002 retirees whose claims were
dismissed by the district court. The following are the facts relevant to the present
appeal.
{4} In October 1994, the City adopted a
new personnel policy manual for the City’s
employees. The portion of the manual covering retiree health care insurance, Section
629, stated:
The City of Portales shall offer
employees upon their retirement
the option of continuing their
group health and life insurance
coverage through the City’s group
plan, provided they are enrolled in
the group health plan at least one
year prior to retirement. The cost
of the insurance for the retiree shall
be the same as the cost for regular
employees. If the City is paying
[seventy-five percent] of the premium for employees, the City shall
pay [seventy-five percent] of the
premium for the retiree and shall
be budgeted out of the department
from which the employee retires.
Retirees shall be responsible for
paying their portion of the premium on a monthly, timely basis,
in order to avoid the lapse of their
policy coverage.
Conditions of the policy coverage shall apply in accordance with
the retiree’s age and circumstances
on an individual basis.
{5} Section 629 was retained in its entirety
when the 1994 personnel policy was revised
in 1997. Three Plaintiffs retired while the
1994 policy was still in effect. The remaining
five retired after the 1997 revision. Seven of
the eight Plaintiffs chose, pursuant to Section 629, to continue coverage under the
City’s group plan following retirement, and
the City initially paid seventy-five percent
of their health insurance premiums while
Plaintiffs were covered under the City’s
group plan. The remaining retiree, Arly
Hamner, retired August 31, 2001. While
it is clear that Hamner was covered under
the City’s group plan as an active employee,
it appears from the record that Hamner
did not continue coverage under the City’s
group plan upon retirement.
{6}On July 18, 2000, the City adopted
Ordinance No. 624 in which the City
opted to be included in coverage under
the New Mexico Retiree Health Care Act
(NMRHCA), effective January 1, 2001,
pursuant to NMSA 1978, Sections 10-7C-1
to -19 (1990) (as amended through 2009).
The city council noted in its July 11, 2000,
meeting that the cost of insuring the retirees
had doubled in the past year and “ha[d] the
potential to break the [C]ity.” Therefore, the
City viewed opting into the New Mexico
Retiree Health Care Authority’s (the Authority’s) system as an “alternative for the
[C]ity to help its retirees with insurance.”
Subsequently, the City adopted Portales,
N.M., Res. 00-01-12 (2000) (the Resolution), which stated both that retirees would
be required to enroll for insurance coverage
administered by the Authority and that the
City would contribute to the retirees’ premiums “at the same amount it is currently
participating.”
{7} In a letter dated November 21, 2000,
the Authority notified Plaintiffs that their
health insurance coverage through the
City would terminate effective December
31, 2000, that Plaintiffs had the option of
receiving coverage under the Authority, and
that the Authority would subsidize a portion of Plaintiffs’ monthly health insurance
premiums. Plaintiffs also received a letter
from the city clerk stating that the City
had opted into the NMRHCA and that the
City “intends to pay toward premiums for
those . . . retirees already in the group health
care plan.” All Plaintiffs who had chosen to
continue coverage under the City’s group
plan after retirement chose to transfer health
insurance coverage to the new plan offered
by the Authority.
{8} Coverage under the Authority’s plan began on January 1, 2001, and the City began
reimbursing Plaintiffs for portions of their
Authority health insurance premiums. It is
undisputed, however, that none of Plaintiffs
received a seventy-five percent reimbursement from the City for their Authority premium billing. Instead, the City reimbursed
Plaintiffs between fifty and fifty-six percent
of their health insurance premiums. Despite
the City’s lower reimbursement amounts,
Plaintiffs continued to pay nearly the same
amount for their portion of monthly premium payments due to the subsidization of
the premiums by the Authority.
{9}On May 3, 2005, the City adopted
Ordinance 654, which replaced the 1997
personnel policy with a new personnel
policy that omitted Section 629. At about
this time, the City began discussing whether
it was obligated to continue reimbursing
Plaintiffs for their Authority health insurance premiums, although the City did continue to reimburse Plaintiffs after Section
629 was omitted from the new personnel
policy. On August 16, 2005, the city council
voted against adopting a resolution stating
that its adoption of the Resolution had, in
effect, cancelled or rescinded any obligations by the City to the retirees previously
offered by Section 629. However, the next
day, August 17, 2005, the city manager
sent Plaintiffs a letter terminating the City’s
health insurance reimbursement payments
to Plaintiffs. The letter stated:
In 2001, the City of Portales became a participating entity in the
New Mexico Retiree Healthcare
Act as approved by Ordinance 624.
Based on legal advice provided by
our [c]ity [a]ttorneys, the City of
Portales can no longer continue
to reimburse you for a portion of
the premium billing which you
receive from New Mexico Retiree
Healthcare for your coverage.
{10}Plaintiffs brought suit on October
11, 2005, for declaratory judgment and
breach of contract. Although Plaintiffs later
amended their claims, the parties agree
that the October, 11, 2005, filing date is
the relevant date for purposes of the City’s
defense under the statute of limitations. Furthermore, for the purpose of our analysis, we
will assume without deciding that the City’s
offer of continued coverage under its group
plan and Plaintiffs’ initial decision, pursuant
to Section 629, to continue receiving health
insurance coverage upon retirement created
an agreement between Plaintiffs and the
City consistent with Plaintiffs’ allegations.
STANDARD OF REVIEW
{11} We review a grant of summary judgment de novo. Farmington Police Officers
Ass’n v. City of Farmington, 2006-NMCA077, ¶ 13, 139 N.M. 750, 137 P.3d 1204.
The standard for summary judgment in
New Mexico is well established:
Summary judgment is appropriate
where there are no genuine issues
of material fact and the movant is
entitled to judgment as a matter of
law. Where reasonable minds will
not differ as to an issue of material
fact, the court may properly grant
summary judgment. All reasonable
inferences are construed in favor of
the non-moving party.
Montgomery v. Lomos Altos, Inc., 2007NMSC-002, ¶ 16, 141 N.M. 21, 150 P.3d
971 (internal quotation marks and citation
omitted).
DISCUSSION
{12} The parties agree that the controlling
statute of limitations for Plaintiffs’ claims
against the City is three years. Section 371-24 provides:
No suit, action or proceeding
at law or equity for the recovery
of judgment upon, or the enforcement or collection of, any sum of
money claimed due from any city,
town or village . . . arising out of
or founded upon any ordinance,
trust relation or contract . . . shall
be commenced except within three
years next after the date of the act
of omission or commission giving
rise to the cause of action, suit or
proceeding.
The parties disagree, however, as to when
the statute of limitations actually began to
accrue. “In a breach of contract action, the
statute of limitations begins to run from the
time of the breach.” Smith v. Galio, 95 N.M.
4, 6, 617 P.2d 1325, 1327 (Ct. App. 1980).
{13} Although the existence and terms of
any alleged agreement between the City
and Plaintiffs have yet to be determined by
the fact finder, Plaintiffs’ claims are wholly
grounded in Section 629. Viewing Section
629 in the light most favorable to Plaintiffs, see Montgomery, 2007-NMSC-002,
¶ 16, it arguably contained two material
obligations: (1) that the City would provide
continuing health insurance coverage to
retiring employees under its group plan;
and (2) that the City, according to Plaintiffs’
reading of Section 629, would reimburse
Plaintiffs seventy-five percent of their health
insurance premiums. As explained below, we
agree with the district court that the statute
of limitations bars Plaintiffs’ causes of action to enforce these alleged obligations.
However, because issues of fact remain as
to the precise terms of an alleged agreement
by the City to contribute toward Plaintiffs’
health insurance premiums, see Beggs, 2009NMSC-023, ¶ 22, we reverse the district
court’s ruling to the extent that Plaintiffs
allege an agreement to reimburse for health
insurance premiums at a rate lower than
seventy-five percent.
The City’s Alleged Obligation to Provide
Continuing Coverage Under the City’s
Group Plan
{14}Plaintiffs’ complaint petitioned the
district court to “declare the rights of . . .
Plaintiffs to receive [retiree] health insurance
from the City of Portales pursuant to
[Section] 629.” Plaintiffs also alleged that
they had “an express agreement with the
City of Portales to provide retiree health
insurance benefits pursuant to the Personnel
Policy Section 629.” Plaintiffs do not
dispute that: (1) the terms of Section 629
required the City to “offer employees upon
their retirement the option of continuing
their group health and life insurance coverage through the City’s group plan, provided
[the retiring employee was] enrolled in the
group health plan at least one year prior
to retirement”; (2) the City adopted the
Resolution on December 19, 2000, requiring any retiree that had elected to continue
coverage under the City’s group plan pursuant to Section 629 to transfer health insurance coverage to the Authority’s plan; and
(3) Plaintiffs previously covered under the
City’s group plan transferred their health
insurance coverage to the Authority’s plan
effective January 1, 2001. Thus, the undisputed material facts establish that, contrary
to Section 629, the City stopped offering or
providing health insurance coverage under
its group plan to retirees effective January
1, 2001. This alleged breach occurred more
than three years before Plaintiffs filed suit.
{15}Plaintiffs argue, however, that the
alleged agreement was not breached until
August 17, 2005, because that is the date
Plaintiffs received notice that the City intended to terminate its obligations under
Section 629. As an initial matter, we note
that the letter received by Plaintiffs makes
no mention of Section 629. Rather, the letter references the transfer of retiree health
insurance coverage to the Authority and
states that the City will no longer reimburse
retirees for a portion of the premiums billed
by the Authority. Thus, this letter does not
contradict the undisputed fact that the City
ceased providing coverage under its own
plan on January 1, 2001.
{16}Furthermore, we reject Plaintiffs’
argument that the transfer of health insurance coverage to the Authority was “just a
change in health insurance providers” such
that Section 629 still governed the obligations of the parties after the transfer. The
material promise of Section 629 was not
an offer of health insurance coverage in
general. Instead, it was an offer of continued health insurance coverage through the
City’s group plan. On November 21, 2000,
the retirees were notified, “If you currently
have coverage through the City of Portales,
it will terminate December 31, 2000.”
Therefore, the City breached its alleged
obligation under Section 629 to provide
insurance coverage to Plaintiffs under the
City’s group plan when it stopped offering
or providing this coverage effective January
1, 2001. See Famiglietta v. Ivie-Miller Enters.,
Inc., 1998-NMCA-155, ¶ 17, 126 N.M.
69, 966 P.2d 777 (describing a material
breach as the “failure to do something that
is so fundamental to the contract that the
failure to perform . . . defeats an essential
purpose of the contract” (internal quotation
marks and citation omitted)). To the extent
Plaintiffs allege this breach as a basis for their
claims, the statute of limitations bars those
claims.
The City’s Obligation to Reimburse
Plaintiffs Seventy-Five Percent of Their
Health Insurance Premiums
{17}Plaintiffs further alleged that the
agreement between them and the City
obligated the City to reimburse them for
seventy-five percent of their premiums.
Again, Plaintiffs do not dispute that the
City provided reimbursement payments of
less than seventy-five percent after Plaintiffs
were transferred to the Authority’s plan as of
January 1, 2001. Therefore, the three-year
statute of limitations bars their claim of
entitlement to seventy-five percent reimbursement.
{18} Plaintiffs attempt to dispute the effect
of these lower reimbursement percentages. They argue that since the premiums
were subsidized by the Authority and were
therefore lower than the City’s group plan
premiums, the “net effect” of the City’s
lower reimbursement percentages when
combined with the Authority’s subsidization resulted in the percentages covered
for Plaintiffs remaining constant after the
transfer of coverage. While this may be true,
this argument is contrary to Plaintiffs’ allegations and theories of recovery. Plaintiffs
maintained that the City was obligated to
reimburse them seventy-five percent of their
premium billing, even for the Authority’s
premiums. Consistent with this allegation,
Plaintiffs have admitted on multiple occasions that after the transfer to the Authority,
they were no longer receiving the seventyfive percent reimbursement payments that
they allege they were entitled to. Thus,
regardless of the net effect, Plaintiffs’ dispute
regarding the effect of the City’s reduced
premium reimbursements does not create
a genuine issue of material fact as to when
the City stopped complying with its alleged
obligations to reimburse Plaintiffs seventy-
five percent of their premium billing. See
Clough v. Adventist Health Sys., Inc., 108
N.M. 801, 803, 780 P.2d 627, 629 (1989)
(“[The] mere argument or bare contentions
of the existence of a material issue of fact is
insufficient.”). Therefore, if Plaintiffs wished
to challenge their receipt of reimbursement
percentages below seventy-five percent, this
challenge should have occurred within three
years of the premium reimbursement reduction in 2001.
{19} However, Plaintiffs may still be entitled to recover for the City’s breach of an alleged agreement to reimburse them for some
amount of their premiums. To the extent
that the City argues that Plaintiffs are limited
to their allegations regarding an entitlement
to a seventy-five percent reimbursement rate,
we disagree. As the Supreme Court recognized in the earlier appeal, there are genuine
issues of material fact as to the precise terms
of the agreement between Plaintiffs and the
City. See Beggs, 2009-NMSC-023, ¶¶ 21-22.
The fact finder could reasonably determine
that the City’s representations to Plaintiffs
that it would contribute toward Plaintiffs’
Authority premiums, albeit at a percentage
amount less than seventy-five percent, were
made pursuant to its alleged obligations
under Section 629. For instance, the City’s
notification letter to Plaintiffs regarding
the transfer of health insurance coverage to
the Authority expressly stated that the City
intended “to pay toward premiums for those
. . . retirees already in the group health care
plan.” This statement was consistent with
discussions by the city council leading up to
the transfer, the language of the Resolution,
and alleged statements by the city manager
to Plaintiffs prior to the transfer that the
City would contribute toward their Authority premiums at a reduced percentage. It is
undisputed that these reduced reimbursement payments were not terminated until a
few months before Plaintiffs filed suit and,
therefore, Plaintiffs’ claims based on entitlement to continuation of these payments are
not barred by the statute of limitations.
{20} In remanding on this issue, we emphasize that Plaintiffs are not entitled to seek
damages for the difference between the fifty
to fifty-six percent reimbursement payments
they were receiving and the seventy-five
percent reimbursement payments they allege they are entitled to. Plaintiffs forfeited
any challenge to the reduction in the City’s
seventy-five percent contributions by failing
to file suit before the statute of limitations
ran. But, as stated above, there are genuine
issues of material fact as to whether the
City obligated itself to continue reimbursing Plaintiffs for a lesser percentage of their
Authority premiums consistent with the
amounts the City had previously contributed. This claim could not have begun to
accrue until these reimbursement payments
were terminated.
Plaintiffs’ Allegations Constitute a Single
Wrong With Continuing Effects
{21}Plaintiffs argue that even if the
termination of coverage under the City’s
group plan and reimbursement payments
of less than seventy-five percent could be
construed as a breach of contract, each allegedly deficient reimbursement payment
constituted an individual breach of contract
and the statute of limitations began accruing
against each payment when it became due.
See Pierce v. Metro. Life Ins. Co., 307 F. Supp.
2d 325, 328 (D. N.H. 2004) (stating the
“universal rule that when an obligation is to
be paid in installments the statute of limitations runs only against each installment as
it becomes due” (internal quotation marks
and citation omitted)). This “continuing
violation” theory has found support in the
context of claims regarding deficient retirement benefit payments. See Adams v. City of
Detroit, 591 N.W.2d 67, 68 (Mich. Ct. App.
1998) (applying continuing violation theory
to hold that the plaintiffs were entitled to
proceed against the defendants for benefits
allegedly withheld during the six years prior
to the filing of the cause of action); Harris
v. City of Allen Park, 483 N.W.2d 434, 436
(Mich. Ct. App. 1992) (“Pension benefits
are similar to installment contracts and the
period of limitation runs from the date each
installment is due. Therefore, every periodic
payment made that is alleged to be less than
the amount due [the] plaintiffs . . . constitutes a continuing breach of contract and
the limitations period runs from the due
date of each payment.”).
{22}Plaintiffs also refer us to Plaatje v.
Plaatje, 95 N.M. 789, 626 P.2d 1286
(1981), as support for the proposition that
the health insurance reimbursement payments should be considered “installment”
payments such that a new breach of contract
occurs upon each missed or deficient payment. In Plaatje, our Supreme Court held
that the plaintiff was not barred by the
statute of limitations from seeking to recover a portion of her ex-husband’s military
retirement benefits. Id. at 790-91, 626 P.2d
at 1287-88. The plaintiff waited nearly five
years after the divorce decree was entered
to file suit seeking to establish her rights
to the retirement benefits. Id. at 789-90,
626 P.2d at 1286-87. The Court concluded
that the retirement benefits were a form of
employee compensation earned during each
month of employment and were received
in the form of “monthly installments.” Id.
at 790-91, 626 P.2d at 1287-88. Therefore,
“the statutory time limitations upon the
plaintiff’s right to sue for her portion of each
installment commenc[ed] to run from the
time each installment [became] due.” Id.
{23}We are not convinced that Plaatje
controls in the present situation. Plaatje
involved a division of community property
pension payments, not an alleged breach
of an employment contract for continued
health insurance coverage upon retirement.
Similarly, the plaintiff’s interest in the retirement benefits in Plaatje was undisputed
since the defendant’s right to receive the
benefits matured while the couple was still
married. Id. at 789, 626 P.2d at 1286. That
is not the case here where, even setting aside
the statute of limitations, there is considerable dispute as to whether Plaintiffs were
entitled to indefinite, continued health insurance coverage provided by the City pursuant to Section 629. Cf. Brehm v. Sargent
& Lundy, 384 N.E.2d 55, 56 (Ill. App. Ct.
1978) (“[T]he stronger weight of authority
has held, at least where pensions funded
by governmental bodies are involved, that
an action to determine the existence of the
right to a pension necessarily precedes and
is distinct, as regards the commencement of
the period of limitation, from an action to
recover installments[.]”).
{24} Furthermore, it is not clear that the
continuing violation theory has received
such “universal” support as Pierce indicates.
In fact, the rule has been criticized as undermining the purposes of the statute of limitations. See Miller v. Fortis Benefits Ins. Co.,
475 F.3d 516, 522 (3d Cir. 2007) (rejecting
continuing violation theory on the basis that
it would give rise to an indefinite limitations
period); Lang v. Aetna Life Ins. Co., 196 F.3d
1102, 1105 (10th Cir. 1999) (“Under [the]
plaintiff’s characterization [of her disability
policy as an installment contract], her claim
would have an indefinite lifespan. Such
a result would undermine the overriding
purpose of a statute of limitation[s].”). Still
other courts have refused to apply it where
the plaintiff’s “claims are based on a single
decision that results in lasting negative effects.” Novella v. Westchester Cnty., 661 F.3d
128, 146 (2d Cir. 2011) (internal quotation
marks and citation omitted); see Schultz
v. Texaco Inc., 127 F. Supp. 2d 443, 447
(S.D.N.Y. 2001) (“[T]he mere fact that the
effects of a single, wrongful act continue to
be felt over a period of time does not render
that single, wrongful act a ‘continuing violation.’ ”).
{25} This Court has previously rejected the
continuing violation theory in the context of
employment contracts where there has been
a “single-wrong with continuing effects.”
Tull v. City of Albuquerque, 120 N.M. 829,
830, 907 P.2d 1010, 1011 (Ct. App. 1995)
(internal quotation marks omitted). In Tull,
the plaintiffs were transferred to supervisory
positions and were therefore entitled to an
increase in salary. Id. at 829, 907 P.2d at
1010. The plaintiffs filed suit seven years
after their promotions, alleging that the
defendant’s failure to increase the plaintiffs’
salaries in accordance with their expanded
job duties was a breach of their employment contract. Id. Due to the seven-year lag
between their promotion and the lawsuit,
the plaintiffs argued that a new breach of
contract occurred each time they received
a paycheck that did not include the raise.
Id. at 829-30, 907 P.2d at 1010-11. This
Court held, however, that the continuing
consequences of the breach, in the form of
lower paychecks, had no effect on the statute
of limitations where the initial failure to
raise the plaintiffs’ salaries constituted the
actionable wrong. Id. at 830, 907 P.2d at
1011.
{26}We agree with the district court’s
reliance on Tull in this case. Similar to the
defendant’s conduct in Tull, the City made
an initial decision to stop complying with
its alleged obligations under Section 629.
This failure resulted in continuing consequences to Plaintiffs in the form of lower
reimbursement payments once Plaintiffs
transferred their health insurance coverage
to the Authority. However, these continuing consequences do not affect the statute
of limitations where the continued negative
effects are based solely on the City’s failure
to comply with the promises Plaintiffs allege
are contained in Section 629. See Tull, 120
N.M. at 832, 907 P.2d at 1013 (“Although
[the] wrong has continuing consequences
in the form of lower paychecks, the continuing effects do not extend the life of
[the p]laintiffs’ breach of contract cause of
action, which is based solely on that initial
refusal.”).
Equitable Estoppel
{27}Plaintiffs also argue that the City
should be estopped from asserting a defense
under the statute of limitations because of
representations that Plaintiffs contend made
them refrain from filing suit until after the
statute of limitations deadline had expired.
We note that this issue was raised for the first
time in Plaintiffs’ motion for reconsideration, which the district court denied. “We
review the denial of a motion for reconsideration for an abuse of discretion.” Nance v.
L.J. Dolloff Assocs., Inc., 2006-NMCA-012,
¶ 23, 138 N.M. 851, 126 P.3d 1215.
{28}To the extent Plaintiffs’ motion
for reconsideration raised new matters
that could have been raised during the
summary judgment briefing but were
not, such failure would provide a basis
to affirm the district court’s denial of the
motion. See id. ¶ 26 (holding that there
was no abuse of discretion in denying a
motion for reconsideration on the basis of
fraudulent concealment where the matter
was raised for the first time in the motion
for reconsideration). In addition, a close
examination of the facts supporting Plaintiffs’ claim for equitable estoppel leads us
to conclude that the district court did not
abuse its discretion in denying the motion
for reconsideration.
{29}Equitable estoppel may prevent a
party from “asserting a statute-of-limitations
defense if that party’s conduct has caused the
plaintiff to refrain from filing an action until
after the limitations period has expired.” In
re Adoption of Drummond, 1997-NMCA094, ¶ 13, 123 N.M. 727, 945 P.2d 457. A
plaintiff claiming equitable estoppel must
show, in part, that it relied upon concealed
or falsely represented facts or representations in a way that prejudicially altered its
position. See Vill. of Angel Fire v. Bd. of Cnty.
Comm’rs of Colfax Cnty., 2010-NMCA-038,
¶ 21, 148 N.M. 804, 242 P.3d 371.
{30} Plaintiffs cite six representations by
the City that they argue should prevent
the City from relying on the statute of
limitations. Four of these representations
occurred in 2005, long after the statute of
limitations had run on Plaintiffs’ claims for
breach of contract related to Section 629,
and therefore they could not have caused
Plaintiffs to refrain from filing suit to enforce those obligations. Plaintiffs additionally point to the July 11, 2000, minutes of
the city council meeting characterizing the
City’s opting into the Authority’s health
insurance system as “an alternative for the
[C]ity to help its retirees with insurance”
and the city clerk’s November 27, 2000,
letter to Plaintiffs stating that “the City of
Portales intends to pay toward premiums
for those . . . retirees already in the group
health care plan and will do so for those
retiring before July 1, 2003.” We fail to see
how these representations were misleading
or induced reliance by Plaintiffs causing
them to refrain from filing suit. See Molinar
v. City of Carlsbad, 105 N.M. 628, 631, 735
P.2d 1134, 1137 (1987). By opting into the
Authority’s health care plan, the City did
provide an alternative avenue for retiree
health care insurance. Furthermore, as the
city clerk’s letter stated, the City then began
paying toward Plaintiffs’ premiums after the
transfer, just not at the percentage desired
by Plaintiffs. Plaintiffs were clearly aware
of that fact before the transfer and once the
City actually started making reimbursement
payments in amounts less than seventy-five
percent. Therefore, the district court properly acted within its discretion in denying
Plaintiffs’ motion for reconsideration.
{31}Because we partially reverse the
district court, we briefly address the City’s
contentions that the Bateman Act and the
doctrine of ultra vires provide additional
grounds for affirmance of the district court’s
grant of partial summary judgment based on
the statute of limitations. Both of these defenses were the subject of separate motions
for summary judgment by the City directed
toward all plaintiffs, not just the eight before
us. Both motions were also separately denied
by the district court.
{32} It is within this Court’s discretion to
affirm the district court under the “right
for any reason” doctrine, but we will not
exercise such discretion if it would result
in unfairness to the appellant. See Meiboom
v. Watson, 2000-NMSC-004, ¶ 20, 128
N.M. 536, 994 P.2d 1154. In this case,
it would not be appropriate to affirm the
district court against these eight plaintiffs
on the basis of defenses raised in denied
motions for summary judgment directed
toward all plaintiffs. Furthermore, because
the Supreme Court in the prior appeal held
that there were issues of fact as to the exact
terms of an alleged agreement between the
City and Plaintiffs, the subject matter of the
City’s additional defenses is more properly
addressed in conjunction with a determination of whether a contract actually existed.
Therefore, we decline the City’s invitation
to revisit the district court’s ruling on these
issues.
CONCLUSION
{33} We affirm summary judgment to the
extent it determined that Plaintiffs’ claims
regarding alleged obligations by the City
pursuant to Section 629—(1) to continue
coverage under the City’s own plan, and (2)
to reimburse Plaintiffs seventy-five percent
of their health insurance premiums—were
barred by the statute of limitations. However, we reverse summary judgment and
remand Plaintiffs’ claims to the extent they
allege that the City was obliged to reimburse
Plaintiffs for their Authority premiums at
amounts less than seventy-five percent.
{34} IT IS SO ORDERED.
CYNTHIA A. FRY, Judge
WE CONCUR:
MICHAEL E. VIGIL, Judge
TIMOTHY L. GARCIA, Judge
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