9/30 - State Bar

Transcription

9/30 - State Bar

September 30, 2015 • Volume 54, No. 39
Inside This Issue
Table of Contents..................................................... 3
New Mexico Supreme Court
Judicial Vacancy.................................................. 4
Board of Legal Specialization:
Comments Solicited........................................... 4
2015 Business Lawyer of the Year:
Nominations Due Oct. 1........................................ 4
Vacancies on Supreme Court Committees:
Deadline is Oct. 2..................................................... 6
2015 State Bar Election
and Leadership Opportunities............................... 8
Clerk’s Certificates................................................. 15
From the New Mexico Court of Appeals
2015-NMCA-068, No. 33,303:
Turner v. First New Mexico Bank ................. 18
2015-NMCA-069, No. 32,403:
Montaño v. Frezza ........................................... 21
Immigration, by Linda Storm and Pablo Perea (see page 3)
www.CubanAmericanArt.net
SPE
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State Bar Center
Your Meeting
Destination
Hold your conference,
seminar, training, mediation,
reception, networking social
or meeting at the
State Bar Center.
• Multi-media
auditorium
• Board room
• Classrooms
• Reception area
• Ample parking
• Free Wi-Fi
For more information,
site visits and reservations,
contact 505-797-6000,
tonyh@nmbar.org, or
carellano@nmbar.org.
5121 Masthead NE
Albuquerque, NM 87109
Conveniently located in Journal Center
2
Bar Bulletin - September 30, 2015 - Volume 54, No. 39
Table of Contents
Officers, Board of Bar Commissioners
Mary Martha Chicoski, President
J. Brent Moore, President-Elect
Scotty A. Holloman, Vice President
Dustin K. Hunter, Secretary-Treasurer
Erika E. Anderson, Immediate Past President
Board of Editors
Maureen S. Moore, Chair
Jamshid Askar
Nicole L. Banks
Alex Cotoia
Kristin J. Dalton
Curtis Hayes
Bruce Herr
Andrew Sefzik
Mark Standridge
Carolyn Wolf
State Bar Staff
Executive Director Joe Conte
Managing Editor D.D. Wolohan
505-797-6039 • dwolohan@nmbar.org
Communications Coordinator
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
©2015, State Bar of New Mexico. No part of this publication may be reprinted or otherwise reproduced without
the publisher’s written permission. The Bar Bulletin has
the authority to edit letters and materials submitted for
publication. Publishing and editorial decisions are based
on the quality of writing, the timeliness of the article,
and the potential interest to readers. Appearance of
an article, editorial, feature, column, advertisement or
photograph in the Bar Bulletin does not constitute an
endorsement by the Bar Bulletin or the State Bar of New
Mexico. The views expressed are those of the authors,
who are solely responsible for the accuracy of their
citations and quotations. State Bar members receive the
Bar Bulletin as part of their annual dues. The Bar Bulletin
is available at the subscription rate of $125 per year and
is available online at www.nmbar.org.
The Bar Bulletin (ISSN 1062-6611) is published weekly
by the State Bar of New Mexico, 5121 Masthead NE,
Albuquerque, NM 87109-4367. Periodicals postage paid at
Albuquerque, NM. Postmaster: Send address changes to Bar
Bulletin, PO Box 92860, Albuquerque, NM 87199-2860.
505-797-6000 • 800-876-6227 • Fax: 505-828-3765
E-mail: address@nmbar.org. • www.nmbar.org
September 30, 2015, Vol. 54, No. 39
Notices .................................................................................................................................................................4
Vacancies on Supreme Court Committees..............................................................................................6
2015 State Bar Election and Leadership Opportunities......................................................................8
Legal Education Calendar..............................................................................................................................9
Writs of Certiorari .......................................................................................................................................... 12
Court of Appeals Opinions List.................................................................................................................. 14
Clerk’s Certificates.......................................................................................................................................... 15
Recent Rule-Making Activity...................................................................................................................... 17
Opinions
2015-NMCA-068, No. 33,303: Turner v. First New Mexico Bank .......................................... 18
2015-NMCA-069, No. 32,403: Montaño v. Frezza ..................................................................... 21
Advertising....................................................................................................................................................... 30
State Bar Workshops
Meetings
October
October
2
Criminal Law Section BOD,
Noon, Kelley & Boone, Albuquerque
7
Divorce Options Workshop
6 p.m., State Bar Center, Albuquerque
6
Bankruptcy Law Section BOD,
Noon, U.S. Bankruptcy Court
7
Civil Legal Fair
10 a.m.–1 p.m., Second Judicial District
Court, Third Floor Conference Room,
Albuquerque
6
Health Law Section BOD,
7 a.m., teleconference
7
Sandoval County Legal Clinic
10 a.m.–2 p.m., Sandoval County District
Courthouse, Bernalillo
7
Children’s Law Section BOD,
Noon, Juvenile Justice Center
8
Business Law Section BOD,
4 p.m., teleconference
8
Public Law Section BOD,
Noon, Montgomery & Andrews, Santa Fe
9
Prosecutors Section BOD,
Noon, State Bar Center
14
Taxation Section BOD,
16
Family Law Section BOD,
8
Valencia County Legal Clinic
10 a.m.–2 p.m., Valencia County District
Courthouse, Los Lunas
9
Roswell Legal Fair
1–5 p.m., Roswell Adult & Senior Center,
Roswell
19
Las Vegas Legal Fair
9 a.m.–1 p.m., New Mexico Highlands
University, Las Vegas
20
Cibola County Legal Clinic
10 a.m.–2 p.m., Cibola County District
Courthouse, Grants
Cover Artist: Linda Storm and Pablo Perea paint together on the same canvases. Though Perea is Cuban and
Storm is American, art is their common language. They are inspired by poetry and parables, myths and miracles.
Both independently acclaimed artists hosted their first all-collaborative exhibition in April 2014 and unveiled
60 paintings. They now share a large art studio in Santa Fe where they paint together daily. They describe their
ability to be creatively prolific together as magical, as if they are being guided. Their cultural collaboration nurtures
empathy and respect for the colorful and varied landscape of life. Their gallery/studio at 1807 Second St., Suite
4, Santa Fe, is open by appointment and for special events. For more information, visit www.cubanamericanart.
net or email stormartist@gmail.com.
3
Notices
Professionalism Tip
Court News
New Mexico Supreme Court
With respect to parties, lawyers, jurors, and witnesses:
Announcement of Vacancy
A vacancy on the Supreme Court will
exist in Santa Fe as of Nov. 1, due to the
retirement of Hon. Richard C. Bosson,
effective Oct. 31. Alfred Mathewson, chair
of the Judicial Nominating Commission,
solicits applications for this position from
lawyers who meet the statutory qualifications in Article VI, Section 8 of the New
Mexico Constitution. Applications may
be obtained from the Judicial Selection website, www.lawschool.unm.edu/
judsel/application.php. The deadline for
applications is 5 p.m., Oct. 9. Applicants
seeking information regarding election
or retention if appointed should contact
the Bureau of Elections in the office of the
Secretary of State. The Judicial Nominating
Commission will meet at 9 a.m. on Oct.
19 at the Supreme Court Building, 237
Don Gaspar Avenue, Santa Fe, to evaluate the applicants for this position. The
Commission meeting is open to the public
and those want to comment on any of the
candidates will be heard.
Board of Legal Specialization
Comments Solicited
The attorneys listed in the next column are applying for certification as a
specialist in the areas of law identified.
Application is made under the New
Mexico Board of Legal Specialization,
Rules 19-101 through 19-312 NMRA,
which provide that the names of those
seeking to qualify shall be released for
publication. Further, attorneys and others are encouraged to comment upon
any of the applicant’s qualifications
within 30 days after the publication of
this notice. Address comments to New
Mexico Board of Legal Specialization,
PO Box 93070, Albuquerque, NM 87199.
I will make all reasonable efforts to decide cases promptly.
Family Law
Janet Clow
Federal Indian Law
Richard Hughes
Carl Bryant Rogers
Local County-Municipal Government Law
Adren Robert Nance
David F. Richards
Trial Specialist-Civil Law
Scott Gordon
relatives of past AGs is encouraged to
contact the OAG Constituent Affairs
Unit to provide contact information at
AGPhotoGallery@nmag.gov. Classes of
students who want to tour the historical
gallery may also contact the OAG at
www.nmag.gov/schedule-a-meeting.
aspx. View a full list of previous attorneys
general in the Sept. 16 Bar Bulletin (Vol.
54, No. 38).
State Bar News
Santa Fe County
Probate Court
Online Case Look-Up Available
The public may now search Santa Fe
County Probate Court docket information for cases filed from 1922 to the
present. To access the case look-up, visit
www.santafecountynm.gov/probate. The
public may continue to access complete
court records at the Santa Fe County
Probate Court at 102 Grant Avenue,
Santa Fe, during normal business hours
or by calling 505-992-6284 or 505-9921636.
Office of the Attorney General
Searching for Relatives of Former
Attorneys General
The Office of Attorney General Hector
Balderas is searching for relatives of past
attorneys general to be included in the
unveiling of a photo gallery honoring
AGs serving from 1846 to present. The
event will be 3–5 p.m. on Oct. 9. The
gallery, housed in the Santa Fe OAG
building, is open to the public for tours
during normal business hours. Anyone
who is related to a past AG or who knows
Attorney Support Groups
• Oct. 5, 5:30 p.m.
First United Methodist Church, 4th
and Lead SW, Albuquerque (The group
meets the first Monday of the month.)
• Oct. 12, 5:30 p.m.
UNM School of Law, 1117 Stanford NE,
Albuquerque, King Room in the Law
Library. To increase access, teleconference participation is now available.
Dial 1-866-640-4044 and enter code
7976003#.
• Oct. 19, 7:30 a.m.
First United Methodist Church, 4th
and Lead SW, Albuquerque (The group
meets the third Monday of the month.)
For more information, contact Hilary
Noskin, 505-449-7984 or Bill Stratvert,
505-242-6845.
Business Law Section
2015 Business Lawyer of the Year
Nominations for the Business Law Section’s annual Business Lawyer of the Year
Award close on Oct. 1. The award will be
presented on Nov. 6 after the section’s CLE
program. Nominees should demonstrate
professionalism and integrity, superior
legal service, exemplary service to the
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
Second Judicial District Court
505-841-6717
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Exhibits/Tapes
Domestic Matters/Relations,
Domestic Violence
For Years
1982–1998
May Be Retrieved Through
Oct. 2, 2015
section or to business law in general, and
service to the public. Self-nominations are
welcome. A complete description of the
award and selection criteria are available
at www.nmbar.org > About Us > Sections
> Business Law Section > Business Lawyer
of the Year. Send nominations to D.D.
Wolohan at dwolohan@nmbar.org. Recent
recipients include John Salazar, Dylan
O’Reilly, Susan McCormack and Robert
Gorman.
Natural Resources, Energy and
Environmental Law Section
Nominations Open for Lawyer of
the Year Award
The Natural Resources, Energy, and
Environmental Law Section will recognize an “NREEL Lawyer of the Year”
during its annual meeting, which will
be held in conjunction with the section’s
CLE on Dec. 18. The award is intended to
recognize an attorney who, within his or
her practice and location, is the model of
a New Mexico natural resources, energy
or environmental lawyer. Section members may nominate as many candidates
as they like. A nominee does not have
to be a member of the NREEL Section,
but membership shall be considered a
positive factor. An Award Committee
comprised of members of the NREEL
Board of Directors will review all nominations to select a candidate. More detailed
criteria and nomination instructions are
available at www.nmbar.org > About Us >
Sections > NREEL. Nominations are due
by Oct. 30 to D.D. Wolohan, dwolohan@
nmbar.org.
Prosecutors Section
Nominations Open for
Annual Awards
The Prosecutors Section recognizes
prosecutorial excellence through its
annual awards. Awards for 2015 will be
given out at the annual meeting in the
following categories: child abuse (Homer
Campbell Award), DWI, drugs, white
collar, domestic violence, violent crimes
(excluding domestic violence and child
abuse cases), and children’s court prosecutor. For detailed award criteria and
nomination procedures, visit www.nmbar.
org > About Us > Sections > Prosecutors.
Nominations may be made by anyone and
additional letters of support are welcome.
The deadline for nominations is 5 p.m.,
Oct. 9.
UNM
Featured
Law Library
Hours Through Dec. 1
Building & Circulation
Monday–Thursday 8 a.m.–8 p.m.
Friday
8 a.m.–6 p.m.
Saturday
10 a.m.–6 p.m.
Sunday
Noon–8 p.m.
Reference
Monday–Friday
9 a.m.–6 p.m.
Saturday–Sunday
Closed
Closure
Thanksgiving holiday: Nov. 26–27
Other Bars
Albuquerque Lawyers Club
Professionalism Lunch CLE
The Albuquerque Lawyers Club presents a luncheon and CLE at 11:30 a.m.,
Oct. 7, at Season’s Rotisserie and Grill
in Albuquerque. Gaelle D. McConnell,
William D. Slease and Jill Anne Yeagley
will present “Succession Planning and
Lawyers: A Little Planning Now, A Lot
Less Panic Later” (2.0 EP). The CLE will
educate and encourage lawyers to take
proactive steps in planning for the management of their practice in the event of
an unexpected interruption or cessation
of practice for reasons beyond the lawyer’s
control. A discussion of the issues and
resources to aid lawyers in the planning
and implementation of a viable succession
plan will be offered. Cost: non-members,
lunch only ($30); non-members, lunch
and CLE, ($100); non-members, CLE
only ($70); members, CLE only (free). For
more information and to register, contact
Yasmin Dennig at ydennig@Sandia.gov or
505-844-3558.
Member Benefit
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
1-888-723-1200, ext. 627
dmartin@meetingbridge.com
www.meetingbridge.com/371
Submit
announcements
for publication in
the Bar Bulletin to
notices@nmbar.or
g
by noon Monday
the week prior
to publication.
Federal Bar Association,
New Mexico Chapter
Historic U.S. Courthouse Tour
Along with the New Mexico Chapter
of the Federal Bar Association, Senior
U.S. District Judge James A. Parker
will lead a free tour of the historic U.S.
Courthouse at 3 p.m. on Oct. 15. The
Courthouse is located at 421 Gold Ave.
in downtown Albuquerque. The courthouse, an important example of pueblodeco architectural design, is the repository of significant Great Depression era
murals. Judge Parker will provide a
brief history of the courthouse, show
its important and significant artwork,
and relate courthouse tales. The tour is
limited to 20 people. To register, email
New Mexico Lawyers
and Judges
Assistance Program
Help and support are only a phone call away.
24-Hour Helpline
Attorneys/Law Students
505-228-1948 • 800-860-4914
Judges
888-502-1289
www.nmbar.org > for Members >
Lawyers/Judges Assistance
5
Valerie Vigil at Valerie_Vigil@nmcourt.
fed.us or call 505-348-2393. To enter the
building, those on the tour must bring
their bar card or a valid photo ID.
Other News
Christian Legal Aid
New Volunteer Training Seminar
Christian Legal Aid of New Mexico
invites new members to join them as they
work together to secure justice for the
poor and uphold the cause of the needy.
Christian Legal Aid will be hosting a
New Volunteer Training Seminar from
11 a.m.–5 p.m., Oct. 23, at the State Bar
Center in Albuquerque. The seminar
includes free lunch, free CLE credits and
training on how to provide legal aid. For
more information or to register, contact
Jim Roach at 505-243-4419 or Jen Meisner
at 505-610-8800 or christianlegalaid@
hotmail.com.
New Mexico Foundation for
Open Government
Lunch to Honor Kent Walz
The New Mexico Foundation for
Open Government will celebrate its 25th
anniversary at the group’s annual Your
Right To Know Lunch, where it will present the Dixon First Amendment Award
to Kent Walz, editor of the Albuquerque
Journal. Walz, a New Mexico attorney,
will receive FOG’s Lifetime Achievement
Award and will be honored along with
three other New Mexicans who, over the
years, have advocated for transparency
in government. The lunch will be held
from 11:30 a.m.–1 p.m. on Oct. 7 at the
Embassy Suites in Albuquerque. This year’s
speaker is New York Times reporter Walt
Bogdanich, who has won the Pulitzer Prize
three times. Tickets are $60 and available
at www.nmfog.org. FOG is a nonprofit,
nonpartisan organization which educates,
advocates and litigates for openness in
government. Recent surveys in the state
have shown that attorneys constitute the
largest single group filing requests for
documents under the New Mexico Inspection of Records Act.
New Mexico Lawyers
for the Arts
Volunteers Needed for Clinic for
Artists and Creative Professionals
New Mexico Lawyers for the Arts and
WESST seek attorneys to volunteer for
NM Lawyers for the Arts Pro Bono Legal
Clinic from 10 a.m.–1 p.m., Nov. 7, at the
Santa Fe Business Incubator. Breakfast will
be provided. Clients will be creative professionals, artists or creative businesses who
are WESST clients. Volunteer attorneys
are needed in the following areas: contracts, business law, employment matters,
tax law, estate planning and intellectual
property law. For more information and
to participate, contact Talia Kosh at tk@
thebennettlawgroup.com.
Notice of Vacancies on Supreme Court Committees
The Supreme Court of New Mexico is seeking applications to fill vacancies on the following Supreme Court committees:
Appellate Rules Committee................1
Code of Judicial Conduct
Committee.............................................2
Rules for Courts of Limited
Jurisdiction Committee.......................1
Board of Legal Specialization.............2
Code of Professional Conduct
Committee.............................................2
Rules of Civil Procedure
Committee.............................................2
Children’s Court Improvement
Commission
(district judge position).......................4
Disciplinary Board...............................2
Domestic Relations Rules
Committee.............................................1
Rules of Criminal Procedure
Committee.............................................2
Children’s Court Rules
Committee.............................................1
Judicial Continuing Legal Education
Committee (judge position)................1
Client Protection Fund
Commission..........................................1
Minimum Continuing Legal
Education Board...................................1
Board Governing the Recording of
Judicial Proceedings.............................1
Rules of Evidence Committee............1
UJI-Criminal Committee....................1
Unless otherwise noted above, all licensed New Mexico attorneys are eligible to apply. Anyone interested in volunteering to
serve on one or more of these committees may apply by sending a letter of interest and résumé to:
Joey D. Moya, Chief Clerk
PO Box 848
Santa Fe, New Mexico 87504-0848
Fax: 505-827-4837
Email: nmsupremecourtclerk@nmcourts.gov
Interested attorneys should describe why they are qualified and shall prioritize no more than three committees of interest.
The application deadline is Oct. 2.
6
OCTOBER 2015: The American Bar Association has dedicated an entire week in October to the “National Celebration of
Pro Bono.” In New Mexico, the local Judicial District Court Pro Bono Committees have extended this celebration to span
the entire month of October (and part of September). The committees are hosting a number of pro bono events across
the state, including free legal fairs, clinics, recognition luncheons, Continuing Legal Education classes and more! To learn
more about any of the events below, or to get involved with your local pro bono committee, please contact Aja
Brooks at ajab@nmlegalaid.org or (505)797-6040. Thank you for your support of pro bono in New Mexico.
1st JUDICIAL DISTRICT:
6th JUDICIAL DISTRICT (LUNA):
Pro Bono Appreciation Luncheon and CLE
Free Legal Fair
October 19, 2015 from 11 AM – 1:30 PM
Hilton of Santa Fe (100 Sandoval St., Santa Fe, NM 87501)
CLE: “ Maintaining Equilibrium To Maximize Professionalism”
by Barbara Kazen, Esq. and Ned Siegel, Phd. (1.0 E/P Pending)
The cost of the luncheon and CLE is $10.
2nd JUDICIAL DISTRICT:
Pro Bono Appreciation Reception
October 23, 2015 from 10 AM - 1 PM
Luna County District Court (855 S. Platinum,
Deming, NM 88030)
9th JUDICIAL DISTRICT:
Ask-A-Lawyer Free Legal Fair, Pro Bono
Appreciation Luncheon, & CLE
October 15, 2015 from 5 – 7 PM
2nd Judicial District Courthouse (400 Lomas Blvd. NW,
Albuquerque, NM 87102)
October 23, 2015 from 11:30 AM – 4:00 PM
Eastern New Mexico University (1500 S. Avenue K,
Portales, NM 88130)
CLE details TBA
Law-La-Palooza Free Legal Fair
12th JUDICIAL DISTRICT (LINCOLN):
Cesar Chavez Community Center
(7505 Kathryn Ave SE, Albuquerque, NM 87108)
Free Legal Fair
October 24, 2015; Time and Location TBA
Free Legal Fair
Sandoval County Legal Clinic
October 19, 2015 from 9 AM – 1 PM
New Mexico Highlands University
(Student Center, 800 National Ave., Las Vegas, NM 87701)
Sandoval County District Courthouse (1500 Idalia Rd., Bldg. A,
Bernalillo, NM 87004)
5th JUDICIAL DISTRICT (CHAVES):
Valencia County Legal Clinic
Free Legal Fair
Roswell Adult & Senior Center
(807 N. Missouri Ave., Roswell)
5th JUDICIAL DISTRICT (LEA):
Free Legal Fair, Pro Bono
Appreciation Luncheon & CLE
Valencia County District Courthouse (1835 Hwy. 314 SW,
Los Lunas, NM 87031)
Cibola County Legal Clinic
Cibola County District Courthouse (515 W. High St.,
Grants, NM 87020)
October 16, 2015 (Time and CLE details TBA)
Hobbs City Hall (200 E. Broadway, Hobbs, NM 88240)
7
2015 Election Information
We need you! The State Bar has many groups members can get involved in. With practice sections centered on a specific type of
law, divisions focused on a career stage and standing committees that examine a particular issues and aspects of the law, there is
a place for everyone. A few of the benefits of involvement are networking, community involvement and education. Though each
section and division is different, leadership responsibilities include attending board meetings in person or by teleconference (most
groups meet monthly or every other month), planning continuing legal education programs, organizing social events for group
members, working on community outreach programs and even involvement in legislative activities. Listed below is information
regarding the election of Board of Bar Commissioners, Board of Editors (a committee) and board members for practice sections,
the Senior Lawyers Division and the Young Lawyers Division. For a full list of State Bar practice sections, committees, and divisions,
visit www.nmbar.org and click “About Us.” For more information about the election process and how to get involved, call the State
Bar Communications and Member Services Department at 505-797-6087.
Board of Bar Commissioners
Pursuant to Supreme Court Rule 24-101, the Board of Bar
Commissioners is the elected governing board of the State Bar
of New Mexico. The 2015 election of seven commissioners for
the State Bar of New Mexico will close at noon, Dec. 1. Nominations to the office of bar commissioner shall be by the written
petition of any 10 or more members of the State Bar who are in
good standing and whose principal place of practice is in the
respective district. Terms in the following bar commissioner
districts will expire Dec. 31: First (Bernalillo County), Second
(Cibola, McKinley, San Juan and Valencia counties), Third
(Los Alamos, Rio Arriba, Sandoval and Santa Fe counties) and
Fifth (Curry, DeBaca, Quay and Roosevelt counties). Petitions
must be received by 5 p.m., Oct. 23. Refer to the Sept. 23 Bar
Bulletin (Vol. 54, No. 38) for the duties and requirements of
Bar Commissioners, specific term information and nomination
instructions.
Board of Editors
The State Bar Board of Editors has four open positions beginning Jan. 1, 2016. The Board of Editors meets at least four
times a year and by email, reviewing articles submitted to the
weekly Bar Bulletin and the quarterly New Mexico Lawyer. This
volunteer board reviews submissions for suitability, edits for
legal content and works with authors as needed to develop the
topics or address other concerns. Their primary responsibility
is for the New Mexico Lawyer, which is generally written by
members of a State Bar committee, section or division about a
specific area of the law. The Board of Editors should represent a
diversity of backgrounds, ages, geographic regions of the state,
ethnicity, gender, and areas of legal practice, and preferably have
some experience in journalism or legal publications. Members
outside of Albuquerque and a non-lawyer member are especially
needed. The State Bar president, with the approval of the Board
of Bar Commissioners, appoints members of the Board of Editors, often on the recommendation of the current Board. Those
interested in being considered for a two-year term should send a
letter of interest and résumé to Managing Editor D.D. Wolohan
at dwolohan@nmbar.org.
8
Practice Sections
All practice section chairs have appointed nominating committees to solicit candidates by Oct. 15 to serve on their respective
boards beginning in January 2016. Those interested in serving
on a section board should contact that section’s chair, available
at www.nmbar.org > About Us > Sections. He or she can direct
you to the nominating committee and provide more information on the process and specific requirements for serving on
that section’s board.
Senior Lawyers Division
The Senior Lawyers Division is seeking new board members to
serve beginning in January 2016. State Bar members who are 55
years of age or older and have been a practicing attorney for at
least 25 years are automatically members of the Division. Those
interested in becoming a director should contact Brad Zeikus at
bzeikus@comcast.net as soon as possible.
Young Lawyers Division
The election is now open for two-year director terms on the
YLD Board for regional directors in odd-numbered regions (1,
3) and odd-numbered director at-large positions (1, 3, 5). To
view the nominating petition, visit www.nmbar.org/nmbardocs/
aboutus/YoungLawyersDivision/YLD2015Petition.pdf. State
Bar members who are under the age 36 or in their first five
years of practice are automatically members of the Division.
All candidates must collect at least 10 signatures from YLD
members to become a candidate. Regional director petitions
must be signed by at least 10 members whose principle place of
practice is within the specified region. Region 1 consists of the
11th Judicial District; and Region 3 consists of the 5th and 9th
judicial districts. Send completed petitions by Oct. 14 to D.D.
Wolohan at dwolohan@nmbar.org.
Legal Education
www.nmbar.org
October
1–2
2015 Annual Meeting—Bench
and Bar Conference: Celebrating
Connections and Community
12.5 total CLE credits
(up to 9.5 G and 6.0 EP)
Colorado Springs, Colo.
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
1
Estate & Trust Planning for Nontraditional Families
1.0 G
National Teleseminar
505-797-6020
www.nmbar.org
2
Ethics of Going Into Business with
Clients
1.0 EP
505-797-6020
www.nmbar.org
6
Insurance and Indemnity in Real
Estate
1.0 G
505-797-6020
www.nmbar.org
7
Choice of Law and Choice of Forum
in Contracts
1.0 G
505-797-6020
www.nmbar.org
8
The U.S. District Court: The Next
Step in Appealing Disability
Denials
3.0 G, 1.0 EP
Live Seminar and Webcast
505-797-6020
www.nmbar.org
8
Health Care Issues in Estate
Planning
1.0 G
505-797-6020
www.nmbar.org
9
Employment and Labor Law
Institute
5.0 G, 1.0 EP
505-797-6020
www.nmbar.org
13
Writing and Speaking to Win (2014)
5.0 G, 1.0 EP
Video Replay
505-797-6020
www.nmbar.org
13
‘Technethics’: Ethical Issues in
Social Media and Other New
Technologies
3.0 EP
Video Replay
505-797-6020
www.nmbar.org
13
How to Become a Rock Star Lawyer,
the Ethical Way
3.0 EP
Video Replay
505-797-6020
www.nmbar.org
13–14 Advance Choice of Entity, Parts 1–2
2.0 G
505-797-6020
www.nmbar.org
20
Risk Management for Lawyers:
What Gets Lawyers Sued (2014
Annual Meeting)
1.0 EP
Video Replay
505-797-6020
www.nmbar.org
20
The 30th Annual Bankruptcy Year
in Review Seminar (2014)
6.0 G 1.0 EP
Video Replay
505-797-6020
www.nmbar.org
20
Mock Meeting of the Ethics
Advisory Committee (2014)
2.0 EP
Video Replay
505-797-6020
www.nmbar.org
20
Drafting Reps and Warranties in
Real Estate Acquisitions & Projects
1.0 G
505-797-6020
www.nmbar.org
16
Veterans Disability Law Bootcamp:
Learning the Practice
5.7 G
Albuquerque
Justice Legal Group
505-880-8737
www.JusticeLegalGroup.com
19
21–22 Business Planning with S Corps,
Parts 1 and 2
2.0 G
505-797-6020
www.nmbar.org
More Reasons to be Skeptical of
Expert Witnesses (Part VI)
5.0 G, 1.5 EP
505-797-6020
www.nmbar.org
2015 Americans with Disabilities
Act Update
1.0 G
505-797-6020
www.nmbar.org
20
22
Legal Writing—From Fiction to
Fact
4.0 G, 2.0 EP
505-797-6020
www.nmbar.org
9
Legal Education
www.nmbar.org
October
23
Ethics and the Attorney Client
Privilege
1.0 EP
505-797-6020
www.nmbar.org
27
23–24 Family Law Institute—Removing
Roadblocks: Dividing Retirement
Benefits During Divorce
10.0 G, 2.0 EP
505-797-6020
www.nmbar.org
27
27
Internet Investigative/Legal
Research on a Budget and Legal
Tech Tips (2014)
6.0 G
Video Replay
505-797-6020
www.nmbar.org
27
2015 Ethicspalooza: Conflicts of
Interest
1.0 EP
Video Replay
505-797-6020
www.nmbar.org
2015 Ethicspalooza: Proper Trust
Accounting
1.0 EP
Video Replay
505-797-6020
www.nmbar.org
2015 Ethicspalooza: The Ethics of
Social Media Use
1.0 EP
Video Replay
505-797-6020
www.nmbar.org
27
2015 Ethicspalooza: Civility and
Professionalism
1.0 EP
Video Replay
505-797-6020
www.nmbar.org
29
Legal Issues on Commercial Leases,
LOIs and TIs
3.7 G
Albuquerque
Commercial Association of Realtors
New Mexico
505-503-7807
http://www.carnm.com/
30
Craig Othmer Memorial
Procurement Code Institute
2.5 G, 1.0 EP
Santa Fe
505-797-6020
www.nmbar.org
30
2015 Land Use Law in New Mexico
5.0 G, 1.0 EP
505-797-6020
www.nmbar.org
27
Offers-in-Compromise: Settling
Tax Liability for Individuals and
Business Owners
1.0 G
505-797-6020
November
3
Small Business Legal Workshop
(2014)
6.5 G
Video Replay
505-797-6020
www.nmbar.org
3
2015 Ethicspalooza: Ethically
Managing Your Practice
1.0 EP
Video Replay
505-797-6020
www.nmbar.org
3
2015 Spring Elder Law Institute
2.6 G
Video Replay
505-797-6020
www.nmbar.org
3
Indemnification & Hold Harmless
Agreements in Business & Real
Estate
1.0 G
505-797-6020
www.nmbar.org
3
2015 Ethicspalooza: Proper Trust
Accounting
1.0 EP
Video Replay
505-797-6020
www.nmbar.org
10
4
2015 Health Law Symposium—The
State of Medicaid in New Mexico:
Fraud/Abuse, Contractual and
Legislative Concerns
4.5 G, 1.0 EP
505-797-6020
www.nmbar.org
4
Estate & Income Tax Planning
Issues in Divorce
1.0 G
505-797-6020
www.nmbar.org
Legal Education
www.nmbar.org
November
5
2015 Religion in the Workplace:
Discrimination & Accommodation
Update
1.0 G
505-797-6020
www.nmbar.org
6
Representing Technology Startups in New Mexico: Navigating the
Intellectual Property and Business
Law Challenges
6.5 G, 1.0 EP
505-797-6020
www.nmbar.org
6
Ethics & Tribunals:
Communicating With the Courts &
Government Agencies
1.0 EP
505-797-6020
www.nmbar.org
10–11 Advanced Planning for Like-Kind
Exchanges of Real Estate, Parts 1–2
2.0 G
505-797-6020
www.nmbar.org
12
Legal Services in the 21st Century:
Preparing for the Bumpy Road
Ahead
5.5 G 1.5 EP
Video Replay
505-797-6020
www.nmbar.org
12
26th Annual Appellate Practice
Institute
5.0 G, 2.0 EP
Video Replay
505-797-6020
www.nmbar.org
12
2015 Tax Symposium
7.0 G
Video Replay
505-797-6020
www.nmbar.org
12
Social Media Use
1.0 EP
Video Replay
505-797-6020
www.nmbar.org
19
12
19
Social Media Use
1.0 EP
Video Replay
505-797-6020
www.nmbar.org
12
Settlement Agreements in Estate &
Probate Disputes
1.0 G
505-797-6020
www.nmbar.org
13
ADR Annual Institute
4.5 G, 2.5 EP
505-797-6020
www.nmbar.org
17
2015 New Mexico Probate Institute
6.2 G, 1.0 EP
505-797-6020
www.nmbar.org
17
Role of Trust Protectors & Trust
Advisers in Estate Planning
1.0 G
505-797-6020
www.nmbar.org
18
Choice Entity for Nonprofits &
Obtaining Tax Exempt Status
1.0 G
505-797-6020
www.nmbar.org
The New Lawyer—Rethinking Legal
Services in the 21st Century
4.5 G, 1.5 EP
505-797-6020
www.nmbar.org
Preferred Returns, Preferences
& Anti-Dilution Mechanisms in
Business & Real Estate
1.0 G
505-797-6020
www.nmbar.org
24
Employment and Labor Law
Institute
5.0 G, 1.0 EP
Video Replay
505-797-6020
www.nmbar.org
24
Representing Technology Startups in New Mexico: Navigating the
Intellectual Property and Business
Law Challenges
6.5 G, 1.0 EP
Video Replay
505-797-6020
www.nmbar.org
24
Legal Writing—From Fiction to
Fact (Full Day)
4.0 G, 2.0 EP
Video Replay
505-797-6020
www.nmbar.org
24
2015 Ethicspalooza: All Those Fees
1.0 EP
Video Replay
505-797-6020
www.nmbar.org
24
Ethicspalooza: Proper Trust
Accounting
1.0 EP
Video Replay
505-797-6020
www.nmbar.org
11
Writs of Certiorari
As Updated by the Clerk of the New Mexico Supreme Court
Joey D. Moya, Chief Clerk New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Effective September 18, 2015
No. 35,266
Petitions for Writ of Certiorari Filed and Pending:
No. 35,517
No. 35,515
State v. Lopez
Saenz v.
Ranack Constructors
No. 35,513 State v. Wyatt B.
No. 35,509 Bank of New York v.
Borrego
No. 35,505 Wild Horse Observers v.
N.M. Livestock Board
No. 35,504 Wild Horse Observers v.
N.M. Livestock Board
No. 35,502 State v. Contreras
No. 35,506 Alonso v. Hatch
No. 35,501 State v. Cardenas
No. 35,500 State v. Trujillo
No. 35,499 Romero v.
Ladlow Transit Services
No. 35,498 Cook v. Wells Fargo Bank
No. 35,497 State v. Barrios
No. 35,487 BAC Home Loans v.
Hutchins
No. 35,495 Stengel v. Roark
No. 35,480 Ramirez v. Hatch
No. 35,479 Johnson v. Hatch
No. 35,474 State v. Ross
No. 35,422 State v. Johnson
No. 35,466 Garcia v. Wrigley
No. 35,456 Haynes v. Presbyterian
Healthcare Services
Response filed 8/13/15
No. 35,454 Alley v. State
No. 35,440 Gonzales v. Franco
No. 35,437 State v. Tafoya
No. 35,433 State v. Irvin
No. 35,431 State v. Irvin
No. 35,422 State v. Johnson
No. 35,416 State v. Heredia
No. 35,415 State v. McClain
No. 35,411 Tayler v. State
No. 35,399 Lopez v. State
No. 35,395 State v. Bailey
No. 35,374 Loughborough v. Garcia
No. 35,375 Martinez v. State No. 35,372 Martinez v. State
No. 35,370 Chavez v. Hatch
No. 35,369 Serna v. State
No. 35,368 Griego v. Horton
No. 35,353 Collins v. Garrett
No. 35,335 Chavez v. Hatch
No. 35,341 Martin v. State
NO, 35,253 State v. Paul
No. 35,371 Pierce v. Nance
No. 35,271 Cunningham v. State
No. 35,269 Peterson v. Ortiz
12
Date Petition Filed
COA 34,166 09/18/15
COA 32,373 09/17/15
COA 33,297 09/14/15
COA 33,988 09/08/15
COA 34,097 09/02/15
COA 34,097
COA 34,011
12-501
COA 34,292
COA 33,257
09/02/15
09/10/15
08/31/15
08/31/15
08/31/15
COA 33,032 08/31/15
COA 31,419 08/31/15
COA 34,477 08/27/15
COA 34,250
12-501
12-501
12-501
COA 33,966
12-501
12-501
08/24/15
08/21/15
08/20/15
08/17/15
08/17/15
08/10/15
08/06/15
COA 34,489 07/30/15
12-501
12-501
COA 34,218
COA 32,643
COA 32,643
12-501
COA 32,937
12-501
12-501
12-501
COA 32,521
12-501
12-501
12-501
12-501
12-501
12-501
COA 34,368
12-501
12-501
COA 33,319
12-501
12-501
12-501
07/29/15
07/22/15
07/23/15
07/22/15
07/21/15
07/17/15
07/15/15
07/15/15
07/10/15
07/09/15
07/09/15
06/23/15
06/22/15
06/22/15
06/15/15
06/15/15
06/15/15
06/12/15
06/03/15
05/28/15
05/27/15
05/22/15
05/06/15
04/29/15
No. 35,261
No. 35,260
No. 35,262
No. 35,227
No. 35,217
No. 35,159
No. 35,106
No. 35,097
No. 35,099
No. 35,068
No. 34,937
No. 34,932
No. 34,881
No. 34,907
No. 34,680
No. 34,777
No. 34,790
No. 34,775
No. 34,706
No. 34,563
No. 34,303
No. 34,067
No. 33,868
No. 33,819
No. 33,867
No. 33,539
No. 33,630
Guy v.
N.M. Dept. of Corrections
12-501
Trujillo v. Hickson
12-501
Duran v. Frawner
12-501
Sena v. Board of Finance
12-501
Romero v. Frawner
12-501
Hernandez v. Horton
12-501
Jacobs v. Nance
12-501
Salomon v. Franco
12-501
Marrah v. Swisstack
12-501
Keller v. Horton
12-501
Jessen v. Franco
12-501
Pittman v.
N.M. Corrections Dept.
12-501
Gonzales v. Sanchez
12-501
Paz v. Horton
12-501
Cantone v. Franco
12-501
Wing v. Janecka
12-501
State v. Dorais
COA 32,235
Venie v. Velasquz
COA 33,427
Response ordered; due 8/22/14
State v. Merhege
COA 32,461
Camacho v. Sanchez
12-501
Benavidez v. State
12-501
Response ordered; filed 5/28/14
Gutierrez v. State
12-501
Gutierrez v. Williams
12-501
Burdex v. Bravo
12-501
Response ordered; filed 1/22/13
Chavez v. State
12-501
Roche v. Janecka
12-501
Contreras v. State
12-501
Response ordered; due 10/24/12
Utley v. State
12-501
04/30/15
04/23/15
04/22/15
04/20/15
04/15/15
04/03/15
03/12/15
02/04/15
01/26/15
12/11/14
11/25/14
10/20/14
10/16/14
10/08/14
09/11/14
07/14/14
07/02/14
06/27/14
06/19/14
05/13/14
02/25/14
07/30/13
03/14/13
11/28/12
10/29/12
09/28/12
07/12/12
06/07/12
Certiorari Granted but Not Yet Submitted to the Court:
(Parties preparing briefs) No. 33,725
No. 33,877
No. 33,930
No. 34,363
No. 34,274
No. 34,443
No. 34,522
No. 34,582
No. 34,694
No. 34,669
No. 34,650
No. 34,784
No. 34,728
Date Writ Issued
State v. Pasillas
COA 31,513
State v. Alvarez
COA 31,987
State v. Rodriguez
COA 30,938
Pielhau v. State Farm
COA 31,899
State v. Nolen
12-501
Aragon v. State
12-501
Hobson v. Hatch
12-501
State v. Sanchez
COA 32,862
State v. Salazar
COA 33,232
Hart v. Otero County Prison 12-501
Scott v. Morales
COA 32,475
Silva v. Lovelace
Health Systems, Inc.
COA 31,723
Martinez v. Bravo
12-501
09/14/12
12/06/12
01/18/13
11/15/13
11/20/13
02/14/14
03/28/14
04/11/14
06/06/14
06/06/14
06/06/14
08/01/14
10/10/14
Writs of Certiorari
No. 34,812
No. 34,830
No. 34,929
No. 35,063
No. 35,016
No. 35,130
No. 35,101
No. 35,148
No. 35,198
No. 35,183
No. 35,145
No. 35,121
No. 35,116
No. 34,949
No. 35,298
No. 35,297
No. 35,296
No. 35,286
No. 35,255
No. 35,249
No. 35,248
No. 35,214
No. 35,213
No. 35,279
No. 35,289
No. 35,290
No. 35,349
No. 35,302
No. 35,318
No. 35,386
No. 35,278
No. 35,398
No. 35,427
No. 35,446
No. 35,451
No. 35,438
No. 35,426
Ruiz v. Stewart
12-501 10/10/14
State v. Mier
COA 33,493 10/24/14
Freeman v. Love
COA 32,542 12/19/14
State v. Carroll
COA 32,909 01/26/15
State v. Baca
COA 33,626 01/26/15
Progressive Ins. v. Vigil COA 32,171 03/23/15
Dalton v. Santander
COA 33,136 03/23/15
El Castillo Retirement Residences v.
Martinez
COA 31,701 04/03/15
Noice v. BNSF
COA 31,935 05/11/15
State v. Tapia
COA 32,934 05/11/15
State v. Benally
COA 31,972 05/11/15
State v. Chakerian
COA 32,872 05/11/15
State v. Martinez
COA 32,516 05/11/15
State v. Chacon
COA 33,748 05/11/15
State v. Holt
COA 33,090 06/19/15
Montano v. Frezza
COA 32,403 06/19/15
State v. Tsosie
COA 34,351 06/19/15
Flores v. Herrera COA 32,693/33,413 06/19/15
State v. Tufts
COA 33,419 06/19/15
Kipnis v. Jusbasche
COA 33,821 06/19/15
AFSCME Council 18 v. Bernalillo County
Comm.
COA 33,706 06/19/15
Montano v. Frezza
COA 32,403 06/19/15
Hilgendorf v. Chen
COA 33056 06/19/15
Gila Resource v. N.M. Water Quality Control
Comm. COA 33,238/33,237/33,245 07/13/15
NMAG v. N.M. Water Quality Control
Comm. COA 33,238/33,237/33,245 07/13/15
Olson v. N.M. Water Quality Control
Comm. COA 33,238/33,237/33,245 07/13/15
Phillips v. N.M. Taxation
and Revenue Dept.
COA 33,586 07/17/15
Cahn v. Berryman
COA 33,087 07/17/15
State v. Dunn
COA 34,273 08/07/15
State v. Cordova
COA 32,820 08/07/15
Smith v. Frawner
12-501 08/26/15
Armenta v.
A.S. Homer, Inc.
COA 33,813 08/26/15
State v.
Mercer-Smith
COA 31,941/28,294 08/26/15
State Engineer v.
Diamond K Bar Ranch COA 34,103 08/26/15
State v. Garcia
COA 33,249 08/26/15
Rodriguez v.
Brand West Dairy COA 33,104/33,675 08/31/15
Rodriguez v.
Brand West Dairy COA 33,675/33,104 08/31/15
Certiorari Granted and Submitted to the Court:
(Submission Date = date of oral
argument or briefs-only submission)
Submission Date
No. 33,969 Safeway, Inc. v.
Rooter 2000 Plumbing COA 30,196 08/28/13
No. 33,898 Bargman v. Skilled Healthcare
Group, Inc.
COA 31,088 09/11/13
No. 33,884 Acosta v. Shell Western Exploration
and Production, Inc.
COA 29,502 10/28/13
No. 34,146
No. 34,093
No. 34,287
No. 34,546
No. 34,613
No. 34,548
No. 34,549
No. 34,798
No. 34,637
No. 34,630
No. 34,789
No. 34,995
No. 34,668
No. 34,974
No. 34,997
No. 34,993
No. 34,726
No. 34,826
No. 34,866
No. 34,940
No. 35,069
No. 34,854
No. 34,886
No. 35,049
No. 35,035
No. 35,478
No. 34,946
No. 34,945
Madrid v.
Brinker Restaurant
COA 31,244
Cordova v. Cline
COA 30,546
Hamaatsa v.
Pueblo of San Felipe
COA 31,297
N.M. Dept. Workforce Solutions v.
Garduno
COA 32,026
Ramirez v. State
COA 31,820
State v. Davis
COA 28,219
State v. Nichols
COA 30,783
State v. Maestas
COA 31,666
State v. Serros
COA 31,975
State v. Ochoa
COA 31,243
Tran v. Bennett
COA 32,677
State v. Deangelo M.
COA 31,413
State v. Vigil
COA 32,166
Moses v. Skandera
COA 33,002
T.H. McElvain Oil & Gas v.
Benson
COA 32,666
T.H. McElvain Oil & Gas v.
Benson
COA 32,666
Deutsche Bank v.
Johnston
COA 31,503
State v. Trammel
COA 31,097
State v. Yazzie
COA 32,476
State v. Flores
COA 32,709
Arencon v.
City of Albuquerque
COA 33,196
State v. Alex S.
COA 32,836
State v. Sabeerin COA 31,412/31,895
State v. Surratt
COA 32,881
State v. Stephenson
COA 31,273
Morris v. Brandenburg
COA 33,630
State v. Kuykendall
COA 32,612
State v. Kuykendall
COA 32,612
12/09/13
01/15/14
03/26/14
08/13/14
12/17/14
01/14/15
02/25/15
03/25/15
04/13/15
04/13/15
04/13/15
05/11/15
08/10/15
08/12/15
08/24/15
08/24/15
08/24/15
08/26/15
08/26/15
09/21/15
09/28/15
09/28/15
09/28/15
10/13/15
10/15/15
10/26/15
11/12/15
11/12/15
Opinion on Writ of Certiorari:
No. 34,085
No. 34,526
Badilla v. Walmart
State v. Paananen
Date Order Filed
COA 31,162 09/10/15
COA 31,982 09/10/15
Petition for Writ of Certiorari Denied:
No. 35,489
No. 35,488
No. 35,486
No. 35,485
No. 35,475
No. 35,447
No. 35,496
No. 35,493
No. 35,470
No. 35,476
Herald v.
Board of Regents
State v. Lewis
Wills v. Board of Regents
State v. Percy
State v. Ross
A&S Retail v.
Town of Red River
State v. Madrigal
Duncan v. Andrews
State v. Cuevas
Praxis Architects, Inc. v.
Century Bank
Date Order Filed
COA 33,187 09/16/15
COA 33,357 09/16/15
COA 33,465 09/16/15
COA 34,197 09/16/15
COA 33,966 09/16/15
COA 34,712
COA 33,041
COA 33,800
COA 34,374
09/16/15
09/15/15
09/15/15
09/15/15
COA 33,045 09/08/15
13
Opinions
As Updated by the Clerk of the New Mexico Court of Appeals
Mark Reynolds, Chief Clerk New Mexico Court of Appeals
PO Box 2008 • Santa Fe, NM 87504-2008 • 505-827-4925
Published Opinions
No. 33649 2nd Jud Dist Bernalillo CV-12-2323, T COUCH v C WILLIAMS (reverse and remand)
9/16/2015
Unublished Opinions
No. 34606 13th Jud Dist Valencia CV-14-915, YOUR CREDIT v K MACGREGOR (reverse and remand)
9/16/2015
No. 34566 12th Jud Dist Lincoln CV-08-27, E SCOTT v J NEW (affirm)
9/17/2015
No. 34554 1st Jud Dist Santa Fe CV-14-1963, P ORTEGA v G JOHNSON (dismiss)
9/17/2015
Slip Opinions for Published Opinions may be read on the Court’s website:
http://coa.nmcourts.gov/documents/index.htm
14
Clerk’s Certificates
From the Clerk of the New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Dated Sept. 16, 2015
Clerk’s Certificate
of Address and/or
Telephone Changes
Caela J. Baker
Harvey & Foote Law Firm LLC
9202 San Mateo Blvd. NE
505-254-0000
505-254-1111 (fax)
caela@harveyfirm.com
Lauren Mikela Bryant
Texas Tech Foundation, Inc.
Office of Institutional
Advancement
PO Box 41081
Lubbock, TX 79409
806-742-1780
mikela.bryant@ttu.edu
James Llewellyn Dodd
901 Park Avenue SW #231
505-506-7763
doddlaw505@gmail.com
Paul Michael Dominguez
Will Ferguson & Associates
1720 Louisiana Blvd. NE,
Suite 100
505-243-5566
505-243-5699 (fax)
paul@fergusonlaw.com
Hon. Laura Fashing
U.S. Magistrate Judge
U.S. District Court,
District of New Mexico
333 Lomas Blvd. NW, Suite 680
505-348-2360
505-348-2365 (fax)
Derek V. Garcia
Will Ferguson and Associates
1720 Louisiana Blvd. NE,
Suite 100
505-243-5566
505-243-5699 (fax)
derek@fergusonlaw.com
Aaron S. Holloman
New Mexico Legal Aid, Inc.
PO Box 1087
200 E. Fourth Street,
Suite 200 (88201)
Roswell, NM 88202
575-623-9669
575-208-1660 (fax)
aaronh@nmlegalaid.org
Billy J. Jimenez
Miller Stratvert PA
500 Marquette Avenue NW,
Suite 1100
505-842-4755
505-243-4408 (fax)
bjimenez@mstlaw.com
Holland Sergent Kastrin
Office of the U.S. Attorney
PO Box 607
201 Third Street NW (87102)
505-346-7274
holland.s.kastrin@usdoj.gov
Dion Killsback
Rosette, LLP
565 W. Chandler Blvd.,
Suite 212
Chandler, AZ 85225
480-889-8990
480-889-8997 (fax)
dkillsback@rosettelaw.com
Alberto A. León
Aleonlaw, PC
1803-B Rio Grande Blvd. NW
505-312-8866
505-312-8867 (fax)
al@aleonlaw.com
Niva J. Lind
Behles Law Firm PC
PO Box 7070
505-242-7004
505-242-7066 (fax)
nivajlind@jdbehles.com
Robert P. Matteucci
New Mexico Legal Group, PC
2701 Arizona Street NE
505-843-7303
505-244-8731 (fax)
rmatteucci@
newmexicolegalgroup.com
Andrew S. Montgomery
212 Cadiz Road
Santa Fe, NM 87505
505-490-2298
dandylizard@icloud.com
Christina Gratke Nason
Burford & Ryburn, LLP
500 N. Akard Street, Suite 3100
Dallas, TX 75201
214-740-3158
214-740-2860 (fax)
cnason@brlaw.com
Jeres Santiago Rael
PO Box 1508
408 Galisteo Street (87501)
Santa Fe, NM 87504
505-827-6064
jrael@nmag.gov
Rheba Rutkowski
Butt, Thornton & Baehr PC
PO Box 3170
4101 Indian School Road NE,
Suite 300 (87110)
505-884-0777
505-889-8870 (fax)
rrutkowski@btblaw.com
Robert Philip Santandrea
57 S. Oakwood Drive
Painted Post, NY 14870
607-481-8506
bobsantan@aol.com
Priscilla Shannon
N.M. Children, Youth
& Families Department
2800 Farmington Avenue
Farmington, NM 87401
505-327-5316
505-599-9680 (fax)
priscilla.shannon@state.nm.us
Mary M. Weber
408 Union Avenue
Laconia, NH 03246
603-524-1831
603-524-1852 (fax)
mweber@nhpd.org
Roscoe A. Woods
The Woods Law Firm
PO Box 1415
115 Court Street
Socorro, NM 87801
866-440-2380
roscoewoods@
woods-woodslawfirm.com
Darrell Brantley
4025 Canterra Arc
Las Cruces, NM 88011
575-442-2680
dbrantley@brantleytaxlaw.com
Thomas S. Dean
Genesis Health System
4074 Prairie Lane
Bettendorf, IA 52722
tomdean@gwi.net
Grieta A. Gilchrist
4705 Hannett Avenue NE
gilchristlawfirm@gmail.com
Jonathan C. Miller
Law Office of
Jonathan C. Miller
PO Box 27638
116 Granite Avenue NW
(87102)
505-610-0629
505-832-3332 (fax)
jon@rattlesnakelaw.com
Ethan D. Nissani
513A Alarid Street
Santa Fe, NM 87501
ethannissani2@gmail.com
Eric D. Norvell
Norvell Werenko PA
4200 Silver Avenue SE, Suite B
505-717-2857
505-214-5267 (fax)
edn@norvellwerenko.com
15
Clerk’s Certificates
Kevin Daniel Pierce
Southwest Family Guidance
Center, LLC
2221 Rio Grande Blvd. NW
kpierce.swfgc@gmail.com
Hon. Christopher J. Schultz
Bernalillo County
Metropolitan Court
PO Box 133
401 Lomas Blvd. NW (87102)
Reynold E. Romero
Sanchez Law Group, LLC
PO Box 6296
Santa Fe, NM 87502
505-660-6042
reromero.esq@gmail.com
Kelly A. Stapler
24 Smith Road, Suite 300
Midland, TX 79701
kstapler@gmail.com
In Memoriam
As of September 9, 2015:
Lydia Camacho-Romisher
PO Box 66595
Tommy D. Hughes
PO Box 1610
Clerk’s Certificate of
Correction
The clerk’s certificate of address
and telephone changes dated
August 11, 2015, reported an
incorrect fax number for Jordan
Mick DeHaan. He does not
have a fax number to be listed
on the Roll of Attorneys.
Jordan Mick DeHaan
Utah State Development
Center
895 N. 900 E.
American Fork, UT 84003
801-763-4187
jdhaan@utah.gov
16
of Reinstatement to
Active Status
Meryl Elizabeth Francolini
301 Central Avenue NE #205
505-506-7230
merylfrancolini@gmail.com
Of Admission
On September 15, 2015:
Lisa C. Hahn-Cordes
N.M. Human Services
Department
2009 Pacheco Street
Santa Fe, NM 87504
505-827-6249
505-827-7729 (fax)
Casey Antonio Williams
Antonio Williams, Esq.
501 E. Nevada
El Paso, TX 79902
915-633-2500
915-542-1079 (fax)
antonio.williams.esq@gmail.
com
Lucinda R. Silva
Law Offices of
Bruce S. McDonald
211 Twelfth Street NW
505-254-2854
505-254-2853 (fax)
csilva@brucemcdonaldlaw.com
Macie J. Hawkes
Hawkes Law Firm, LLC
1237 S. Val Vista Drive
Mesa, AZ 85204
480-442-5255
480-320-4079 (fax)
mhawkes@hawkes-law.com
Christopher J. Lento
4701 W. 43rd Street
Houston, TX 77092
713-489-9387
clentobeta@gmail.com
Matthew G. Watson
(watsonlawlc@gmail.com)
Joshua L. Smith (jsmith.
watsonlawlc@gmail.com)
Watson Smith, LLC
PO Box 2183
Mesilla Park, NM 88047
1100 S. Main Street, Suite 21,
Las Cruces, NM 88005
Gena L. Sluga
Christian, Dichter & Sluga
2700 N. Central Avenue,
Suite 1200
Phoenix, AZ 85004
602-792-1718
602-792-1710 (fax)
gsluga@cdslawfirm.com
of Change to Inactive
Status
Effective September 15, 2015:
Patricio A. Tafoya
8816 Desert Rain Road NW
505-414-6644
tafoyapa@gmail.com
Recent Rule-Making Activity
As Updated by the Clerk of the New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Pending Proposed Rule Changes
Open for Comment:
Uniform Jury Instructions-Criminal
Comment Deadline
Recently Approved Rule Changes Since
Release of 2015 NMRA:
For 2014 year-end rule amendments that became effective December 31, 2014, and which now appear in the 2015 NMRA, please
see the November 5, 2014, issue of the Bar Bulletin or visit the
New Mexico Compilation Commission’s website at http://www.
nmcompcomm.us/nmrules/NMRuleSets.aspx.
Rule No. Set/Title
Effective Date
14 602
14 603
14 604
14 605
14 610
14 611
14 612
14 615
14 621
14 622
14 623
14 625
Rules of Civil Procedure
for the District Courts
1-005.2
Electronic service and filing of pleadings
and other papers.
07/01/15
Withdrawn
Withdrawn
Withdrawn
Withdrawn
Withdrawn
Chart
Child abuse not resulting in death or great
bodily harm; essential elements
Child abuse resulting in great bodily harm;
essential elements
Child abuse resulting in death; child at least
12 but less than 18; essential elements
Child abuse resulting in death; reckless
disregard; child under 12; essential elements
Child abuse resulting in death; intentional
act; child under 12; essential elements
Jury procedure for various degrees of
child abuse resulting in death of a child
under twelve years of age
04/03/15
04/03/15
04/03/15
04/03/15
04/03/15
04/03/15
04/03/15
04/03/15
04/03/15
04/03/15
04/03/15
04/03/15
Local Rules of the
Second Judicial District Court
LR2-303 Electronic filing authorized. 07/01/15
To view all pending proposed rule changes (comment period open or closed),
visit the New Mexico Supreme Court’s website at http://nmsupremecourt.nmcourts.gov.
To view recently approved rule changes, visit the New Mexico Compilation Commission’s website
at http://www.nmcompcomm.us.
17
Advance Opinions
http://www.nmcompcomm.us/
From the New Mexico Supreme Court and Court of Appeals
Certiorari Denied, June 26, 2015, No. 35,230
Opinion Number: 2015-NMCA-068
JAMES A. TURNER and TRACY TURNER, Husband and Wife,
Plaintiffs-Appellants,
v.
FIRST NEW MEXICO BANK,
Defendant-Appellee
Docket No. 33,303 (filed March 17, 2015)
APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY
J.C. ROBINSON, District Judge
MARTIN E. THREET
MARTIN E. THREET AND ASSOCIATES
Albuquerque, New Mexico
for Appellants
THOMAS D. WALKER
WALKER & ASSOCIATES, P.C.
for Appellee
LAUREN KEEFE
PEIFER, HANSON & MULLINS, P.A.
Opinion
Michael E. Vigil, Judge
{1}This case requires us to determine
whether res judicata, also known as claim
preclusion, bars the filing of a second lawsuit when a virtually identical lawsuit was
previously dismissed “without prejudice.”
The district court ruled that the second
suit is barred, and we affirm.
BACKGROUND
{2}In October 2010, Plaintiffs filed a
civil complaint in the Luna County district
court, and the case was assigned to Judge
Viramontes. In response to Defendant’s
motion , Judge Viramontes ordered Plaintiffs to make a more definite statement,
and Plaintiffs filed an amended complaint
(First Complaint). In general terms, the
First Complaint alleged that Plaintiffs
purchased a farm and built a dairy on the
farm, financed by loans from Defendant,
and that Defendant subsequently engaged
in actions by which Defendant attempted
to take control and management of
Plaintiffs’ business. Count I alleged that
Defendant’s course of conduct “became
so egregious that it violated the standards
of good faith and fair dealing that are
18
required by [NMSA 1978,] Section 55-1304 [(2005)] of the Uniform Commercial
Code[.]” Count II alleged that Plaintiffs
repaid a loan in full and Defendant failed
and refused to report to credit reporting
agencies that the loan had been repaid,
with the consequence that the loan was reported as being past due, causing damage
to Plaintiffs’ credit. Count III alleged that
Defendant’s conduct violated the standards
of good faith and fair dealing required
by the Uniform Commercial Code and
was sufficiently malicious, reckless and
wanton, as to warrant the imposition of
punitive damages. Defendant then filed a
motion to dismiss the First Complaint in
its entirety for failure to state a claim pursuant to Rule 1-012(B)(6) NMRA. After
Plaintiffs responded, Judge Viramontes
held a hearing. Following that hearing in a
July 2012 order, Judge Viramontes granted
Defendant’s motion and dismissed each
count of the First Complaint “without
prejudice.” Judge Viramontes reasoned
that Count I alleged a breach of the “obligation of good faith” set forth in Section
55-1-304, and this section of the Uniform
Commercial Code does not support an
independent cause of action; that Count
II alleged a violation of the federal Fair
Credit Reporting Act, 15 U.S.C. § 1681
(2012), and because the claim relates to
Plaintiffs’ personal or consumer loan, federal law preempts the state law claim; and
that Count III alleged a claim for punitive
damages under the Uniform Commercial
Code, which does not provide for an award
of punitive damages.
{3} No appeal was taken from Judge
Viramontes’s order of dismissal. Instead,
Plaintiffs filed a new complaint against
Defendant in September 2012 (Second
Complaint), and this case was assigned to
Judge Robinson. The parties and Counts
I and III of the Second Complaint are absolutely identical to the First Complaint.
Count II is virtually identical, adding
only that Defendant’s conduct as it relates
to Plaintiffs’ personal or consumer loan
impacted their “business relationships”
and “commercial credit.” Defendant filed
a motion to dismiss the Second Complaint
on grounds that Judge Viramontes’s order
dismissing the First Complaint was binding in the case under principles of res
judicata (claim preclusion) and collateral
estoppel (issue preclusion) and for the additional reason that the Second Complaint
fails to state a claim upon which relief can
be granted. Judge Robinson agreed with
Defendant and dismissed the Second
Complaint in its entirety with prejudice.
Plaintiffs appeal.
{4}The dispositive issue in this case is
the effect of the order dismissing the First
Complaint on the Second Complaint.
Plaintiffs argue that because dismissal of
the First Complaint was “without prejudice,” it had no effect on their right to file
the Second Complaint, and Defendant
asserts that dismissal of the Second Complaint was proper under the doctrines of
claim preclusion and issue preclusion. For
the reasons which follow, we agree that
claim preclusion was properly applied, and
affirm.
STANDARD OF REVIEW
{5} The facts are undisputed; therefore,
our review of whether res judicata applies presents a question of law, which we
review de novo. State ex rel. Peterson v.
Aramark Corr. Servs., LLC, 2014-NMCA036, ¶ 23, 321 P.3d 128 (“ ‘When the facts
are not in dispute, the preclusive effect
of a prior judgment is a question of law
reviewed de novo.’ ” (quoting Rosette, Inc.
v. United States Dep’t of the Interior, 2007NMCA-136, ¶ 31, 142 N.M. 717, 169 P.3d
704)).
OctoberDecember
CLE Planner
Your Guide to Continuing Legal Education
It’s the Start of the 4th Quarter…
Here’s Your CLE Playbook
Full course agendas
available online. Visit
www.nmbar.org
Most courses at the State Bar Center include ...
Breakfast and Lunch
Materials
Networking
Reach us at 505-797-6020.
5121 Masthead NE • PO Box 92860, Albuquerque, NM 87199
CENTER FOR LEGAL EDUCATION
www.nmbar.org
October
Sunday
State Bar Center, Albuquerque
Monday
Tuesday
Wednesday
Thursday
Friday
1
Saturday
2
3
New pr
og
coming rams
soon ...
Watch
your em
ail
for upd
ates!
4
5
6
ars
Telesemin
.
o
all m nth
available
r
r.org fo
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rma
more info
11
8 9
The U.S. District Court: The
Next Step in Appealing
Disability Denials
Employment and Labor
Law Institute
5.0 G, 1.0 EP
3.0 G, 1.0 EP
12
13
14
16
More Reasons To Be
Skeptical of Expert Witnesses
17
5.0 G, 1.5 EP
See page 7
Video
Replays
18
20
19
Legal Writing—
From Fact to Fiction
4.0 G, 2.0 EP
22 Family
23-24
Law Institute—Removing
See page 5
Roadblocks: Dividing Retirement
Benefits During Divorce
10.0 G, 2.0 EP
Video
Replays
25
26
27
28
Craig Othmer Memorial
Procurement Code Institute
31
2.5 G, 1.0 EP
On-De
mand
CLE fro
Self-stu m home!
dy o
course n-demand
sa
Visit nm vailable.
b
more in ar.org for
format
ion.
30
2015 Land Use Law in
New Mexico
5.0 G, 1.0 EP
Video
Replays
Preliminary schedule. Visit our website for more details.
2
CLE Planner • September 30, 2015
www.nmbar.org
November
Sunday
Monday
1
Tuesday
Wednesday
4
2
Health Law Symposium
The State of Medicaid
in New Mexico: Fraud/
Abuse, Contractual and
Legislative Concerns
Thursday
Friday
Saturday
56
Indian Law Representing
Symposium Technology
Details coming Start-ups
soon! 6.5 G, 1.0 EP
4.5 G, 1.0 EP
8
10
9
12 13 ADR Institute
11
4.5 G, 1.5 EP
Video
Replays
15
2015 New Mexico
Probate Institute
6.2 G, 1.0 EP
22
29
17
23
d
eman
On-D
!
home d
m
o
r
f
an
CLE
-dem
n
o
y
le.
tud
Self-s ses availab r
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fo
u
co
ar.org n.
b
m
n
atio
Visit
inform
e
r
o
m
30
The New Lawyer—
18
19
Rethinking Legal Services
in the 21st Century
Kinship
Guardianship
Details coming
soon!
24
25
21
4.5 G, 1.5 EP
See page 5
26
Happy
Thanksgiving!
27
28
Video
Replays
www.nmbar.org September 30, 2015 • CLE Planner
3
December
Sunday
Monday
Tuesday
Wednesday
Thursday
1 Reciprocity in New Mexico
Friday
3
4.5 G, 3.5 EP
7
8
2015 Real
Property
Institute
9 10
5
4
T
availa elesemina
rs
ble a
ll m
Visit n
mbar.o onth.
more
r
inform g for
ation.
5.0 G, 1.0 EP
6
Saturday
Trial Know-How!
Courtroom Skills
from A to Z
12
7.0 G
Immigration Law
5.0 G, 1.0 EP
Video
Replays
14
13
15
16
17
Stuart Teicher
6.0 EP
See page 6
Video
Replays
20
Trials
of the
Century
18
19
25
26
NREEL
Details coming
soon!
Video
Replays
21
Cybersleuth’s Guide
22 23 The
to the Internet
5.0 G, 1.0 EP
See page 6
5.0 G, 1.0 EP
See page 6
Video
Replays
27
ng for
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thin
g
some
bar.or .
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ons
e opti
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o
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for
28
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30 31
Upcoming
2016 Legislative
Session
Details coming
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Video
Replays
4
www.nmbar.org
National Speakers
Legal Writing—
From Fiction to Fact
4.0 G
2.0 EP
with Nationally Renowned Author and Lecturer Steven Stark, Esq.
Thursday, Oct. 22, 2015 • 9 a.m.-4:15 p.m.
$249: Standard Fee
$219: Government, legal services attorneys, and Paralegal Division members
$279: Webcast Fee
2.0 G 1.0 EP (Morning Session Only)
$145: Standard Fee
$159: Webcast Fee
The Surprisingly Useful Things Legal Writers Can Learn from Fiction
Effective storytelling is a fine and beautiful art. The tale you tell will be remembered long after other orations. Although storytelling is an
art, there are skills, tools and techniques that can be learned in order to develop the talent—both oral and in writing.
The presenter will show you how to pump up your legal work using techniques borrowed from fiction while maintaining professionalism
in your writing.
8:30 a.m. Registration
9 a.m
The Uses and Misuses of Poetry in Argument
11 a.m.
Break
11:15 a.m. T
he Uses and Misuses of Storytelling: Affidavits as
Dialogue (1.0 EP)
12:15 p.m. Lunch (provided at the State Bar Center)
2.0 G 1.0 EP (Afternoon Session Only)
$145: Standard Fee
$159: Webcast Fee
Writing the Facts and Arguments in Litigation
The presenter will cover how to use facts and arguments effectively in legal writing.
12:30 p.m.
1 p.m.
3 p.m.
Registration
Writing the Facts in Litigation
• The role of narrative in argument
• The 10 rules of writing fact in litigation
Break
3:15 p.m.
4:15 p.m.
Writing Arguments in Litigation (1.0 EP)
• The six fundamental precepts of argument writing
• The art of legal writing
• The 12 rules of ethics and professional litigation writing
Adjournment
The New Lawyer—Rethinking
Legal Services in the 21st Century
4.5 G
1.5 EP
featuring Mark E. Lassiter, Founder of The Lassiter Law Firm
Thursday, Nov. 19, 2015 • 9 a.m.-4:15 p.m.
Online legal services for consumers and outsourced legal services for corporations are challenging the way law firms do business. In this
program, Mark Lassiter presents an alternative vision for the future of the legal profession. The day includes a bootcamp on how lawyers
must advise their clients concerning electronic evidence discovery (EED) of electronically stored information (ESI).
Visit www.nmbar.org for more information.
www.nmbar.org September 30, 2015 • CLE Planner
5
National Speakers
What NASCAR, Jay-Z & the Jersey Shore
Teach About Attorney Ethics
3.0 EP
presented by Stuart Teicher, Esq., the CLE ‘Performer’
Thursday, Dec. 17, 2015
The seemingly unrelated topics of art, sports and modern culture all carry interesting and valuable messages for attorneys. In this oneof-a-kind seminar, Mr. Teicher explains how various elements of popular culture provide poignant lessons that help us understand and
appreciate the rules of professional conduct. Whether it’s being aware of misconduct or maintaining competence, Mr. Teicher delivers an
innovative, captivating seminar that teaches valuable lessons about attorney ethics.
Talking ‘Bout My Generation: Professional
Responsibility Dilemmas Among Generations
3.0 EP
presented by Stuart Teicher, Esq., the CLE ‘Performer’
The Who may have been referring to a particular generation, but they’re not the only one with problems. Every generation of lawyers face
tough professional obstacles. In this program, Stuart Teicher, Esq. (the “CLE Performer”) explores a variety of professional conduct topics that
are near and dear to each generation’s heart.
Trials of the Century
5.0 G
1.0 EP
featuring Todd Winegar
Monday, Dec. 21, 2015
Todd Winegar is a dynamic speaker and attorney who has taught CLE programs in most major cities in the U.S. and Canada. His practice has
involved him in some of the largest cases in his state, including a record plaintiff setting verdict. Mr. Winegar’s practice emphasizes civil trial
litigation, including a Minuteman missile accident case, professional malpractice, and product liability actions involving para-and quadriplegia.
The Cybersleuth’s Guide to the Internet
5.0 G
1.0 EP
featuring Carole Levitt, Esq., and Mark Rosch, Internet for Lawyers
Monday, Dec. 23, 2015 • 9 a.m.-4:15 p.m.
In the morning session, best-selling ABA authors and internationally renowned CLE speakers, Carole Levitt, Esq., and Mark Rosch, of Internet for
Lawyers, will reveal hidden Google search features and shortcuts to speed up your investigative/legal research. In the afternoon session, you
will learn how to successfully navigate through many social media sites to find and use profiles for background and investigative research and
as evidence … ethically.
Each in-person attendee will receive a free copy of their 500-page book, The Cybersleuth’s Guide to the Internet, 13th ed. (2015), a $64.95 value.
Visit www.nmbar.org for more information.
6
www.nmbar.org
More Reasons To Be Skeptical
of Expert Witnesses (Part VI)
5.0 G
1.5 EP
Friday, Oct. 16, 2015 • 9 a.m.-5 p.m.
$265: Standard Fee
$235: Government and legal services attorneys, and Paralegal Division members
$295: Webcast Fee
8:30 a.m. Registration and Continental Breakfast
9 a.m.How Cognitive Bias Affects the
Criminal Justice Process
Dan Simon, USC Gould School of Law and
Department of Psychology
10:30 a.m. Break
10:45 a.m. What Every Medical Examiner Wished Every Judge
(and Prosecutor and Defense Attorney) Knew
Andrew M. Baker, M.D., Hennepin County Medical
Examiner’s Office
12:15 p.m. Lunch (provided at the State Bar Center)
1:15 p.m.Dealing with Scientific Evidence:
The Professional Side
Hon. Roderick Kennedy, New Mexico Court of Appeals
“ Shut up and Sign the Paper.” Elder Abuse,
Undue Influence and Testamentary Capacity
Determinations
Daniel A. Martell, Ph.D., A.B.P.P., Park Dietz & Associates,
Inc.
3:15 p.m. Break
3:30 p.m. No One Prosecuted Aaron Burr’s Second for Murder:
What Responsibility Do Lawyers Have When the
Expert Pulls the Trigger (1.5 EP)
Fred Chris Smith, J.D., former Assistant United States
Attorney for New Mexico
5 p.m.
Adjournment
2 p.m.
Sixth in the popular series! This CLE is moderated by Judge Roderick R. Kennedy,
New Mexico Court of Appeals, and features expert presenters and authors!
Judge Roderick Kennedy was first elected
to Albuquerque's Metropolitan Court in 1988,
serving for 11 years until his merit selection and
appointment to the Court of Appeals in 1999,
and again in 2001. He has served as a designated
judge at all levels in New Mexico, and was a judge
pro tem for the Jicarilla Apache Nation in Dulce,
N.M. In his practice, Judge Kennedy tried hundreds of cases as a
prosecuting attorney and trial attorney doing general litigation
and criminal defense. He is listed in Who's Who in American Law,
and Who's Who of Emerging Leaders in America.
Professor Dan Simon specializes in the field of
Law and Psychology. He teaches criminal law,
as well as various courses in the intersection of
law and psychology. He also teaches a course on
law and psychology at the USC Dornsife College
of Letters, Arts and Sciences. Professor Simon
has been invited to lecture on the psychological
dimensions of the criminal justice process to
groups of judges, prosecutors and police personnel across the
United States and in Israel.
Dr. Andrew Baker is a graduate of the University
of Iowa and a graduate of the University of Iowa
College of Medicine. He completed his residency
in pathology at the University of Iowa Hospitals
and Clinics and completed a year of specialized
training in forensic pathology in Minneapolis,
Minnesota. Dr. Baker is board-certified in anatomic
and clinical pathology, with subspecialty certification in forensic
www.nmbar.org pathology. He is a fellow of the College of American Pathologists.
Dr. Baker is a fellow of the American Academy of Forensic
Sciences and has previously served as the chair of the Academy’s
Pathology/Biology section.
Dr. Daniel Martell is one of the most highly
qualified forensic neuropsychologists in the U.S.
with over 20 years of clinical forensic experience in
both criminal and civil litigation. He has consulted
on hundreds of forensic cases in more than 30
states specializing in issues of mental disorder,
brain damage and violent criminal behavior. Dr.
Martell is certified in forensic psychology by the American Board of
Professional Psychology and a fellow of the American Academy of
Forensic Psychology.
Fred Chris Smith, J.D., former Assistant U.S.
Attorney for New Mexico, retired from the
Department of Justice in 2007 after 35 years of
practicing as a trial lawyer in the Southwestern
United States. He attended the University of
Michigan and Stanford Law School, and began
practicing law in New Mexico and Colorado
in 1972. He remains an active member of the State Bar of New
Mexico and is currently an inactive member of the Colorado
State Bar. Smith presently resides in Aptos, California, limiting
his practice to consulting on special projects involving new
technologies, Native American issues and complex civil and
criminal cases, while spending most of his time growing organic
vegetables for farmers’ markets in the Monterey Bay area.
September 30, 2015 • CLE Planner
7
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Advance Opinions
ANALYSIS
{6} “Res judicata [i.e., claim preclusion] is
designed to relieve parties of the cost and
vexation of multiple lawsuits, conserve
judicial resources, prevent inconsistent decisions, and encourage reliance on adjudication.” Potter v. Pierce, 2015-NMSC-002,
¶ 10, ___P.3d ___ (No. 34,365, Jan. 8, 2015)
(alterations, omission, internal quotation
marks, and citation omitted); see also Alba
v. Hayden, 2010-NMCA-037, ¶ 6, 148
N.M. 465, 237 P.3d 767 (“ ‘The principles
of preclusion operate to promote finality
in civil disputes by relieving parties of the
burdens of multiple lawsuits, conserving
judicial resources, and preventing inconsistent decisions.’ ” (quoting Rosette, Inc.,
2007-NMCA-136, ¶ 32)). Claim preclusion “bars relitigation of the same claim
between the same parties or their privies
when the first litigation resulted in a final
judgment on the merits.” Deflon v. Sawyers,
2006-NMSC-025, ¶ 2, 139 N.M. 637, 137
P.3d 577 (internal quotation marks and citation omitted). The party asserting claim
preclusion must establish that “(1) there
was a final judgment in an earlier action,
(2) the earlier judgment was on the merits,
(3) the parties in the two suits are the same,
and (4) the cause of action is the same in
both suits.” Potter, 2015-NMSC-002, ¶ 10.
{7}We first address whether the order
dismissing the First Complaint is a final judgment notwithstanding that the
dismissal was “without prejudice.” The
order dismissed the First Complaint in
its entirety, it fully disposed of the rights
of the parties, and otherwise disposed of
the matter to the fullest extent possible,
without authorizing or specifying when an
amended complaint could be filed. Moreover, the order decisively and fully determined that Plaintiffs failed to state a cause
of action, and an immediate appeal was
necessary to reverse that determination.
The order dismissing the First Complaint
therefore constituted a final judgment
under our established precedent. See Vill.
of Los Ranchos de Albuquerque v. Shiveley,
1989-NMCA-095, ¶¶ 10-13, 110 N.M. 15,
791 P.2d 466 (concluding that an order
dismissing “without prejudice” for lack
of standing constituted a final judgment
because the order “terminated the suit and
the proceeding was completely disposed of
so far as the court had power to dispose of
it”); Bralley v. City of Albuquerque, 1985NMCA-043, ¶¶ 11-16, 102 N.M. 715, 699
P.2d 646 (concluding that an order of
dismissal “without prejudice” for failure
to exhaust administrative remedies which
did not authorize or specify a definite time
to file an amended complaint was a final
judgment because the order fully terminated and disposed of the case before the
court). In Sunwest Bank of Albuquerque v.
Nelson, 1998-NMSC-012, ¶¶ 7-9, 125 N.M.
170, 958 P.2d 740, our Supreme Court
expressly approved Bralley and Village of
Los Ranchos and concluded itself that an
order of dismissal “without prejudice” for
improper venue was a final order because
the order “disposed of the matter to the
fullest extent possible in the court in
which the action was filed.” Sunwest Bank
of Albuquerque, 1998-NMSC-012, ¶ 9.
{8}We next address whether the order
dismissing the First Complaint is a judgment “on the merits.” Here, Defendant
filed a motion to dismiss pursuant to
Rule 1-012(B)(6). Plaintiffs responded in
writing to the motion and then made oral
arguments in opposition to the motion in a
notice hearing held before Judge Viramontes. Under these circumstances, the “merits” of whether the First Complaint stated
a cause of action under Rule 1-012(B)(6)
was fully and fairly litigated before Judge
Viramontes in accordance with the due
process rights of Plaintiffs to notice and
an opportunity to be heard. Accordingly,
we conclude that the order dismissing the
complaint constituted a judgment “on the
merits” that the First Complaint failed to
state a cause of action. See Federated Dep’t
Stores, Inc. v. Moitie, 452 U.S. 394, 399 n.3
(1981) (“The dismissal for failure to state
a claim under Federal Rule of Civil Procedure 12(b)(6) is a ‘judgment on the merits.’
”); AVX Corp. v. Cabot Corp., 424 F.3d 28,
30 (1st Cir. 2005) (“Ordinarily, a dismissal
for failure to state a claim is treated as a
dismissal on the merits and there is abundant case law to this effect.”). We therefore
hold that the order dismissing the First
Complaint constitutes a judgment “on the
merits” that is entitled to claim preclusion
effect.
{9}There is no dispute that the last two
requirements for claim preclusion (that the
parties in the two suits are the same, and
that the cause of action is the same in both
suits) are satisfied. We only add that Count
II in the First Complaint was dismissed
because preemption under the federal Fair
Credit Reporting Act applies to personal or
consumer loans. To the extent the minor
changes made in the wording of Count II
in the Second Complaint requires a review
of the merits, the district court noted that
the complaint was filed by Plaintiffs in
their individual capacities and alleged that
Plaintiffs borrowed the money in their
individual capacities and that Defendant
failed to report to credit reporting agencies
that Plaintiffs had repaid the loan. We also
note that the complaint alleges Plaintiffs
were personally damaged. Plaintiffs cite
no authority establishing that the minor
changes made in the wording to Count II
convert what is otherwise a personal loan
into a commercial loan. Thus, regardless
of the minor changes, Count II remains
preempted under the Fair Credit Reporting Act.
{10} For the foregoing reasons, we hold
that res judicata (claim preclusion) barred
the filing of the Second Complaint.
CONCLUSION
{11} The order of the district court is affirmed.
{12} IT IS SO ORDERED.
MICHAEL E. VIGIL, Chief Judge
I CONCUR:
M. MONICA ZAMORA, Judge
TIMOTHY L. GARCIA, Judge
(specially concurring).
GARCIA, Judge (specially concurring).
{13} I write to specially concur with the
majority and disagree with the application
of res judicata to dispose of the merits of
Plaintiffs’ appeal. Because I disagree with
the majority, I would hold that the dismissal of the First Complaint “without prejudice” by Judge Viramontes precludes the
application of res judicata to the Second
Complaint. However, as to the merits of
Plaintiff ’s Second Complaint, I agree with
Judge Robinson’s alternative position that
Plaintiff ’s Second Complaint fails to state
a claim upon which relief can be granted
under Rule 1-012(B)(6). As a result, the
dismissal of the Second Complaint should
be affirmed on that basis.
{14} The first issue is whether Judge
Viramontes’s order dismissing the First
Complaint without prejudice constitutes
a final judgment “on the merits” for the
purposes of res judicata. The majority correctly points out that certain federal courts
recognize the application of res judicata to
a dismissal without prejudice under a factual scenario similar to this case. Majority
Opinion ¶ 8. However, our appellate courts
appear to disagree with this federal position and do not apply the doctrine of res
judicata when the district court, without
any specific qualifications or limiting instruction, utilizes its discretion to dismiss a
complaint “without prejudice.” See Sunwest
Bank v. Nelson, 1998-NMSC-012 ¶ 7, 125
19
Advance Opinions
N.M. 170, 958 P.2d 740 (addressing a dismissal without prejudice in the context of
finality so as to permit an immediate appeal
but also acknowledging that separate proceedings on the merits are appropriate and
overcome the doctrine of res judicata when
claims are dismissed without prejudice);
Marquez v. Juan Tafoya Land Corp., 1981NMSC-080, ¶ 9, 96 N.M. 503, 632 P.2d 738
(noting that “a dismissal without prejudice
contemplates the right to further proceedings”); Watkins v. Local Sch. Bd., 1975NMSC-048, ¶¶ 8, 12, 88 N.M. 276, 540 P.2d
206 (recognizing that a dismissal without
prejudice along with a limited opportunity
to amend the complaint within twenty days
only became final and binding when no
amended pleadings were filed within the
time period allowed); Bankers Trust Co.
of Cal. v. Baca, 2007-NMCA-019, ¶¶ 9-10,
141 N.M. 127, 151 P.3d 88 (denying the
application of res judicata to the dismissal
of a foreclosure action without prejudice
that was based upon significant inactivity
by the bank); Salazar v. Yellow Freight Sys.,
Inc., 1990-NMCA-003, ¶¶ 11-13, 109 N.M.
443, 786 P.2d 57 (denying the application
of res judicata to a recommended decision
arising during the first of two workers’
20
compensation administrative proceedings
where the first claim was dismissed without
prejudice); Bralley, 1985-NMCA-043, ¶ 18
(recognizing that “[t]he words ‘without
prejudice’ when used in an order or decree
generally indicate that there has been no
resolution of the controversy on its merits
and leaves the issues in litigation open to
another suit as if no action had ever been
brought”); Chavez v. Chenoweth, 1976NMCA-076, ¶¶ 25-27, 89 N.M. 423, 553
P.2d 703 (denying the application of res
judicata to numerous claims against third
parties arising from an automobile accident
that were dismissed without prejudice in
various separate actions). “A dismissal
‘without prejudice’ gives the complainant
the right to state a new and proper cause
of action, if he can, and does not take away
any rights of defense to the action.” Bralley, 1985-NMCA-043, ¶ 18. Based upon
this established precedent in New Mexico,
the merits of Plaintiffs’ Second Complaint
should be addressed anew.
{15} As the majority recognized, Plaintiffs’ Second Compliant is identical to the
First Complaint except for some minor
additional language added to Count II.
Majority Opinion ¶ 3. The modified claims
were fully addressed by Judge Robinson
and I agree with his analysis and the
dismissal of Plaintiffs’ Second Complaint
under Rule 1-012(B)(6). The minor wording modification made to Count II did not
establish an issue of fact regarding whether
Plaintiffs’ individual loan under Count
II was preempted under the federal Fair
Credit Reporting Act. Plaintiffs have failed
to provide this Court with any authority
to support their position that a personal
loan impacting their business relationships
and commercial credit avoids preemption
under the federal Fair Credit Reporting
Act. See Jojola v. Fresenius Med. Clinic,
2010-NMCA-101, ¶ 7, 149 N.M. 51, 243
P.3d 755 (recognizing that where a party
fails to provide any authority for an argument, we will presume that none exists).
As a result, the rewording of Count II was
also properly dismissed pursuant to Rule
1-012(B)(6).
{16} For the reasons stated herein, I
specially concur with the majority and
would affirm the district court’s dismissal
of Plaintiffs’ Second Complaint.
TIMOTHY L. GARCIA, Judge
Advance Opinions
Certiorari Granted, June 19, 2015, No. 35,297;
Certiorari Granted, June 19, 2015, No. 35,214
Opinion Number: 2015-NMCA-069
KIMBERLY MONTAÑO,
Plaintiff-Appellee,
v.
ELDO FREZZA, M.D.,
Defendant-Appellant,
and
LOVELACE INSURANCE COMPANY, a domestic For-Profit Corporation,
Defendant
Docket No. 32,403 (filed March 19, 2015)
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
C. SHANNON BACON, District Judge
JERRY TODD WERTHEIM
ROXIE DE SANTIAGO
SAMUEL C. WOLF
ELIZABETH C. CLIFFORD
JONES, SNEAD, WERTHEIM
& CLIFFORD, P.A.
Santa Fe, New Mexico
for Appellee
NELSON FRANSE
BRIAN BRACK
RODEY, DICKASON, SLOAN,
AKIN & ROBB PA
for Lovelace Insurance Company
WILLIAM P. SLATTERY
DANA S. HARDY
ZACHARY T. TAYLOR
HINKLE, HENSLEY, SHANOR
& MARTIN, LLP
Santa Fe, New Mexico
for Appellant
Opinion
Michael D. Bustamante, Judge
{1} This case is one of three presently
before the Court of Appeals that involve
the asserted medical negligence of then
Texas-based physician Dr. Eldo Frezza. See
Gonzales v. Frezza, COA No. 32,606, and
Gallegos v. Frezza, COA No. 32,605. The
issue presented in this case is whether Dr.
Frezza should enjoy the immunity granted
by the Texas Tort Claims Act (TTCA)
when he is sued by a New Mexico resident
in a New Mexico court. We conclude that
under principles of comity Dr. Frezza is
entitled to immunity, but only so far as
that immunity is consistent with the New
Mexico Tort Claims Act (NMTCA). We
also conclude that the district court’s order
was too broadly worded. Hence, we affirm
in part and vacate in part the district court’s
ruling and remand for further proceedings.
BACKGROUND
{2} Like the plaintiffs in the other two
cases, Ms. Montaño, a New Mexico
resident, traveled to Lubbock, Texas to
undergo bariatric surgery by Dr. Frezza at
the Texas Tech University Health Sciences
Center (the Center). Ms. Montaño had
been told by her insurer, Lovelace Insurance Company (Lovelace), that Dr. Frezza
was the only bariatric surgeon for whom it
would provide coverage. For approximately
six years, Ms. Montaño traveled to Lubbock for follow-up care and treatment by
Dr. Frezza for complications arising from
the surgery. Eventually, testing by another
doctor revealed gastrointestinal bleeding
caused by an “eroding permanent suture.”
That doctor performed corrective surgery.
{3} At all times relevant to this case, Dr.
Frezza was an employee of the Center,
which is a governmental unit of the state of
Texas. See Tex. Tech Univ. Health Scis. Ctr. v.
Ward, 280 S.W.3d 345, 348 (Tex. App. 2008)
(stating that the center is a governmental
unit). The Center established Texas Tech
Physician Associates (TTPA) to administer
managed care contracts for its physicians,
including the contract with Lovelace.
Although not a party to the contract, Dr.
Frezza was a “represented physician” subject to the terms of the contract. Additional
facts are included in our discussion.
{4} Ms. Montaño filed suit against Dr.
Frezza and Lovelace, alleging breach of
contract and negligent referral by Lovelace,
medical negligence by Dr. Frezza, violation
of the New Mexico Unfair Practices Act by
both Dr. Frezza and Lovelace, and lack of
informed consent. Dr. Frezza filed two motions for dismissal. One motion asserted
that New Mexico did not have personal
jurisdiction over him. In the other he argued that as a Texas public employee he
was immune from suit under the TTCA.
See Rule 1-012(B)(2), (6) NMRA. The
district court determined that New Mexico
law, not the TTCA, should be applied.
The district court also concluded that Dr.
Frezza had sufficient contacts with New
Mexico such that New Mexico courts court
assert personal jurisdiction over him. The
district court then denied both motions.
Dr. Frezza filed a motion to reconsider
the denial of his motion to dismiss based
on personal jurisdiction. The motion to
reconsider is still pending below.
{5} Dr. Frezza petitioned this Court for a
writ of error under the collateral order doctrine, arguing that the district court erred
in concluding that New Mexico law applied.
See Rule 12-503 NMRA. The petition, which
addresses only this issue, was granted.
DISCUSSION
A.The Petition for Writ of Error was
Appropriately Granted
{6} We begin by addressing whether the
district court’s decision to apply New
Mexico law is appropriate for appellate
review under the collateral order doctrine.
Generally, appeal lies only from a “final
judgment or decision, any interlocutory
order or decision which practically disposes of the merits of the action, or any
final order after entry of judgment which
affects substantial rights[.]” NMSA 1978,
§ 39-3-2 (1966). “The principle of finality
21
Advance Opinions
[evinced in this statute] serves a multitude
of purposes, including the prevention of
piecemeal appeals and the promotion of
judicial economy.” Handmaker v. Henney,
1999-NMSC-043, ¶ 7, 128 N.M. 328, 992
P.2d 879. An exception to this preference
for finality is known as the collateral
order doctrine, “whose reach is limited
to trial court orders affecting rights that
will be irretrievably lost in the absence of
an immediate appeal.” Carrillo v. Rostro,
1992-NMSC-054, ¶ 16, 114 N.M. 607, 845
P.2d 130 (internal quotation marks and
citation omitted). To permit review under
the doctrine, “(1) the order must finally determine the disputed question; (2) it must
concern an issue that is entirely separate
from the merits of the claim; and (3) there
must be no effective remedy by appeal.”
Handmaker, 1999-NMSC-043, ¶ 9.
{7} Our cases have held that where an
order addresses a party’s immunity from
suit, as opposed to immunity from liability,
it satisfies the collateral order doctrine
criteria. See Campos de Suenos, Ltd. v. Cnty.
of Bernalillo, 2001-NMCA-043, ¶ 15, 130
N.M. 563, 28 P.3d 1104 (stating, “We issue
writs of error to review immunity from suit
cases because we consider them collateral
order[s] affecting interests that would be
irretrievably lost if the case proceeded
to trial.” (alteration in original) (internal
quotation marks and citation omitted));
accord Handmaker, 1999-NMSC-043,
¶ 14; Carrillo, 1992-NMSC-054, ¶ 20;
Sugg v. Albuquerque Pub. Sch. Dist., 1999NMCA-111, ¶ 8, 128 N.M. 1, 988 P.2d
311; cf. Carmona v. Hagerman Irrigation
Co., 1998-NMSC-007, ¶ 21, n.5, 125 N.M.
59, 957 P.2d 44 (“The [NMTCA] provides
immunity from liability, not absolute immunity from suit, so the collateral order
exception to the finality of judgments rule
would not apply in this case.”).
{8} To the extent that Ms. Montaño
argues that the writ of error was improvidently granted because the collateral
order doctrine criteria were not satisfied,
we disagree. Ms. Montaño contends that
the real question before the district court
depended on the nature of TTPA’s contract
with Lovelace and thus the district court’s
order (1) did not resolve the question, and
(2) was dependent on the merits of the case.
But the question before the district court
was a basic one: whether New Mexico or
Texas law should apply. As will be seen in
our discussion below, the answer to this
question does not involve detailed examination of the facts related to Dr. Frezza’s
practice. Application of Texas law here
would result in dismissal of Ms. Montaño’s
suit against Dr. Frezza because the TTCA
does not permit suits against government
employees acting within their employment.
See Tex. Civ. Prac. & Rem. Code Ann. §
101.106(f) (West 2013). Because the choice
of law encompasses whether Dr. Frezza is
immune from suit, the decision necessarily
implicates a right that would be “irretrievably lost” if not heard by this Court. See
Campos de Suenos, Ltd., 2001-NMCA-043,
¶ 15. We conclude that the district court’s
order is properly before us for review.
B. New Mexico Law Applies
{9} We turn to whether the district court
properly analyzed whether New Mexico or
Texas law governs Ms. Montaño’s suit. In
doing so, we “review the district court’s decision to use a comity analysis de novo, and
then review a district court’s application
of comity for abuse of discretion.” Sam v.
Sam, 2006-NMSC-022, ¶ 9, 139 N.M. 474,
134 P.3d 761. Dr. Frezza does not challenge
the district court’s decision to embark on
its comity analysis. Thus, as to the comity
issue, we only determine whether the district court’s decision exceeded the bounds
of its discretion. We begin, however, by
addressing the “place-of-the-wrong” rule,
and then address whether the district
court properly analyzed whether Texas law
should apply under principles of comity.
{10} Although some states have adopted the “most significant relationship”
approach to the choice of law, the New
Mexico Supreme Court has continued to
endorse the “place-of-the-wrong” rule in
choice of law cases. Terrazas v. Garland &
Loman, Inc., 2006-NMCA-111, ¶¶ 12, 14,
140 N.M. 293, 142 P.3d 374 (stating that
“New Mexico courts have steadfastly applied the lex loci delicti rule in tort cases”);
see Restatement (Second) of Conflict of
Laws § 6 (1971); 15A C.J.S. Conflict of Laws
§ 38 (2014). Under this rule, “the substantive rights of the parties are governed by
the law of the place where the wrong occurred.” Terrazas, 2006-NMCA-111, ¶ 12.
“The place of the wrong . . . is the location
of the last act necessary to complete the
injury.” Torres v. State, 1995-NMSC-025,
¶ 13, 119 N.M. 609, 894 P.2d 386 (internal
quotation marks and citation omitted).
{11} But the place-of-the-wrong rule
may give way when policy considerations
outweigh its application. See In re Estate of
Gilmore, 1997-NMCA-103, ¶ 18, 124 N.M.
119, 946 P.2d 1130 (“[P]olicy considerations
may override the place-of-the-wrong rule.”).
For instance, in Torres, the New Mexico
Supreme Court held that New Mexico law
should apply where the alleged negligence
of the Albuquerque Police Department
resulted in a death in California because
“public policy dictates that New Mexico
law determine the existence of duties and
immunities on the part of New Mexico
officials.” 1995-NMSC-025, ¶ 14 (alteration, internal quotation marks, and citation omitted). Similarly, in Sam, the New
Mexico Supreme Court reversed the Court
of Appeals, which had relied on the placeof-the-wrong rule to conclude that New
Mexico law should apply where the plaintiff
sued an Arizona governmental unit over
an accident that occurred in New Mexico.
2006-NMSC-022, ¶¶ 1, 6, 29. The general
rule derived from these cases is that “we
begin with a strong presumption in favor of
application of the place-of-the-wrong rule,
but we will not close our eyes to compelling
policy arguments for departure from the
general rule in specific circumstances.” In
re Estate of Gilmore, 1997-NMCA-103, ¶ 21.
{12} The district court determined that
“New Mexico is the location of the last
act necessary to complete the injury because [Ms. Montaño’s] injuries manifested
themselves in New Mexico.” Based on its
decision that the injury manifested itself in
New Mexico, the district court concluded
that “New Mexico law applies” to the case.
We perceive no error in the district court’s
Restatement-based place-of-the-wrong
analysis.1 See Torres, 1995-NMSC-025, ¶
1The special concurrence takes issue with our discussion of and approval of the district court’s application of the place-of-the-wrong
rule. We disagree that it was error for the district court to begin with this analysis. In Sam, the Supreme Court stated that appellate
courts should “review the district court’s decision to use a comity analysis de novo” and that this review assesses “the appropriateness
of a district court’s decision to engage in a comity analysis.” 2006-NMSC-022, ¶¶ 9, 12. This language suggests that the decision to
engage in the comity analysis itself depends on a prior legal conclusion that it is necessary. If the place-of-the-wrong rule indicated
that Texas law applied, there would have been no need to proceed to a comity analysis. Thus, if the question could have been resolved
by relying on an established set of legal principles not requiring a detailed policy analysis, it was not error for the district court to
begin with that tack.
22
Advance Opinions
13; Roberts v. Piper Aircraft Corp., 1983NMCA-110, ¶ 9, 100 N.M. 363, 670 P.2d
974; Beh v. Ostergard, 657 F. Supp. 173,
175-76 (D.N.M. 1987).
{13} However, the outcome of the placeof-the-wrong analysis does not end the
matter. The district court understood this.
Recognizing that Dr. Frezza was an employee of the State of Texas and potentially
immune from suit under Texas’s TTCA, the
district court went on to conduct an analysis
of whether it should apply Texas law as a
matter of comity. The presence of a defendant who can colorably assert his status as
a Texas state actor entitled to the protection
of Texas’s sovereignty as expressed in the
TTCA required the district court—and
requires us—to engage in a comity analysis.
In this circumstance, the comity analysis
all but displaces the place-of-the-wrong
analysis in resolving the issues before us.
Thus, we move on to comity.
{14} The concept of comity as a tool for
deciding choice-of-law issues in the United
States has a long history, most of which is
not necessary to recount here. See generally Holly Sprague, Choice of Law: A Fond
Farewell to Comity and Public Policy, 74
Calif. L. Rev. 1447, 1449-50 (1986). We do
note that comity concerns play a role in
the Restatement (Second) formulation of
a conflict-of-law analysis. See Restatement
(Second) of Conflict of Laws § 6 (1971).
The role of comity in actions against states
or their employees in the courts of their
sister states, however, was unexplained and
unclear until the Supreme Court’s opinion
in Nevada v. Hall, 440 U.S. 410 (1979).
{15} In Hall, a California resident sued
the University of Nevada in the California
courts for injuries he suffered in an auto
collision that occurred in California. The
California courts accepted jurisdiction of
the case, and after a verdict was entered,
refused to honor the statutory damages
limit set by Nevada law for actions against
Nevada governmental entities. Id. at 41213. Hall held, as a matter of first impression,
that there was nothing in the federal constitution preventing a state from being sued
in another state, assuming personal and
subject matter jurisdiction was otherwise
appropriate. The Court held that nothing
“in Art. III authorizing the judicial power
of the United States, or in the Eleventh
Amendment limitation on that power,
provide any basis, explicit or implicit, for
this Court to impose limits on the powers
of California exercised in this case.” Id. at
421. The Court also held that the “Full Faith
and Credit Clause does not require a [s]tate
to apply another [s]tate’s law in violation
of its own legitimate public policy.“ Id. at
422. Finally, the Court ruled that no other
provision of the Constitution—including
the Commerce Clause, the Extradition
Clause, and the Privileges and Immunities
Clause—supported any conclusion other
than that “one [s]tate’s immunity from suit
in the courts of another [s]tate is [nothing]
other than a matter of comity.” Id. at 425.
The Supreme Court provided no guidance
in Hall as to how the states could or should
exercise this comity.
{16} The Supreme Court again visited the
issue of interstate immunity in the case of
Franchise Tax Board of California v. Hyatt,
538 U.S. 488 (2003). In Hyatt, a Nevada
resident sued a California tax collection
agency in Nevada for damages, asserting
both negligent and intentional torts. The
trial court denied the California agency’s
motion to dismiss for lack of subject matter
jurisdiction. The Nevada Supreme Court
reversed in part, holding that the theories
sounding in negligence should have been
dismissed under comity principles, but
concluding that the intentional tort claims
could proceed to trial. 538 U.S. at 492. The
Nevada Supreme Court acknowledged that
California had granted its agency complete
immunity from suit. Nevertheless, noting
that Nevada does not provide immunity
for acts taken in bad faith or for intentional
torts, the Nevada Supreme Court held that
“Nevada’s interest in protecting its citizens
from injurious intentional torts . . . committed by sister states’ government employees should be accorded greater weight
than California’s policy favoring complete
immunity for its taxation agency.” 538 U.S.
at 493-94 (internal quotation marks and
citation omitted).
{17} In a unanimous opinion, the Supreme Court affirmed its holding in Hall
that the “Constitution does not confer
sovereign immunity on [s]tates in the
courts of sister [s]tates.” Hyatt, 538 U.S. at
497. The Supreme Court also affirmed and
strengthened its prior ruling that the Full
Faith and Credit Clause does not require
Nevada to honor California’s statute, noting that:
There is no principled distinction
between Nevada’s interests in tort
claims arising out of its university
employee’s automobile accident,
at issue in Hall, and California’s
interests in the tort claims here
arising out of its tax collection
agency’s residency audit.
Hyatt, 538 U.S. at 498.
{18} As in Hall, the Supreme Court in
Hyatt provided no guidance as to how the
states should apply comity principles when
resolving suits against sister states. It did
observe that it saw no “policy of hostility”
toward California by Nevada. See Hyatt,
538 U.S. at 499. Rather, it noted, Nevada
had “sensitively applied principles of comity with a healthy regard for California’s
sovereign status, relying on the contours
of Nevada’s own sovereign immunity from
suit as a benchmark for its analysis.” Id.
{19} Abstract descriptions of “comity” are
as varied as the opinions applying them. In
Hyatt, for example, the Nevada Supreme
Court phrased the principle as “an accommodation policy, under which the courts
of one state voluntarily give effect to the
laws and judicial decisions of another state
out of deference and respect, to promote
harmonious interstate relations[.]” 538
U.S. at 493 (internal quotation marks
and citation omitted). Closer to the case
at hand, a Texas court described it as “a
principle under which the courts of one
state give effect to the laws of another state
or extend immunity to a sister sovereign,
not as a rule of law, but rather out of deference or respect. It is a doctrine grounded in
cooperation and mutuality.” State of N.M.
v. Caudle, 108 S.W.3d 319, 321 (Tex. App.
2002) (citation omitted)).
{20} Even closer to home, in Sam, our
Supreme Court described comity as “a
principle whereby a sovereign forum state
recognizes and applies the laws of another
state sued in the forum state’s courts. The
sovereign forum state has discretion
whether or not to apply the laws of the
other state.” 2006-NMSC-022, ¶ 8. These
formulations emphasize the core concerns
of comity—mutual respect and harmonious relationships while protecting the
forum state’s own policy choices—but they
provide no specific guideposts to follow as
the comity decision is made.
{21} In Sam, our Supreme Court did
provide guideposts. First, the Court set
the stage by noting that comity should be
extended to other states but only if doing
so will not violate or undermine New
Mexico’s own important public policies.
Id. ¶¶ 13, 21. Sam then suggested four
factors our courts should take into account
when “determining whether extending
immunity through comity would violate
[New Mexico’s] public policy.” Id. ¶ 22. In
determining whether to extend immunity,
courts should consider: “(1) whether the
forum state would enjoy similar immunity
under similar circumstances, (2) whether
23
Advance Opinions
the state sued has or is likely to extend
immunity to other states, (3) whether the
forum state has a strong interest in litigating the case, and (4) whether extending
immunity would prevent forum shopping[.]” Id. (citations omitted).
{22} Unfortunately Sam does not provide
any indication how the four factors should
be weighed as between themselves. And,
more importantly, Sam does not provide
explicit guidance as to how or when courts
should fold in the comparative public
policy analysis which is central to deciding
whether honoring the state’s immunity law
improperly contravenes our own public
policy choices. It is not clear whether that
discussion must be had within the parameters of each factor or whether it is more
appropriately conducted separately and
used as a bright backdrop when assessing
the impact of the four factors.
{23} Thus, we confess some confusion
as to how Sam should be applied. We also
perceive some confusion in the district
court about the matter. As a drafting solution, we will deal with each factor on its
terms, comparing and contrasting Texas
and New Mexico law as appropriate, but
we will also separately sum up the public
policy implications of the factors and the
differences in the two states’ laws.
{24} We first examine the district court’s
assessment of the four Sam factors for an
abuse of discretion. See id. ¶ 9. As to the
first factor, the district court found that “it
is unlikely the State of Texas would extend
immunity to the State of New Mexico
under similar circumstances[.]” This is
not a correct formulation of the first factor. This factor was derived from Head v.
Platte County, Missouri, 749 P.2d 6 (Kan.
1988), in which the Kansas Supreme Court
considered whether to apply Missouri law
in a suit between a Kansas resident and a
Missouri county. Id. at 7, 10. The court
concluded that application of Missouri
law would afford Missouri defendants
greater protections than Kansas provided
to its own citizens. Id. at 10. It stated, “If
Missouri has sovereign immunity within
our borders, a Kansas resident would be
denied all recovery for injury caused by
Missouri agents in this state, even though
if agents of the State of Kansas had committed the same act, recovery could be
permitted under our [t]ort [c]laims [a]ct.”
Id. (McFarland, J., dissenting); accord Mor-
rison v. Budget Rent A Car Sys., 230 A.D.2d
253, 268 (N.Y. App. Div. 1997). Similarly,
the Sam court’s analysis under the first
factor addressed whether “a similar action
brought against a New Mexico entity or
government employee would be barred by
the . . . [NMTCA].” 2006-NMSC-022, ¶ 23.
Thus, in the context of this case, the first
factor should be stated as follows: would a
similar action against a New Mexico governmental entity or employee be barred by
the NMTCA? The answer to this question
is clearly “no” because, as we discuss in
more detail below, contrary to the TTCA,
the NMTCA permits suits against government employees. In addition, as we explain
below, the TTCA’s strict occurrence-based
notice of claim provision would clearly
preclude Ms. Montaño’s action, whereas
the NMTCA notice provision allows for
discovery-based calculation of time. We
view both of these provisions as important
aspects of New Mexico immunity law that
merit protection.
{25} Thus, although for different reasons,
we agree with the district court that this
factor weighs against enforcing the TTCA.
See In re Clark’s Will, 1955-NMSC-063, ¶
7, 59 N.M. 433, 285 P.2d 795 (stating that
comity does not require “the courts of
this state to extend to a citizen of another
state a right or privilege that would not be
extended to one of our own citizens in a
matter of this kind”).
{26} The second factor is whether Texas
has or will extend immunity to New
Mexico. Sam, 2006-NMSC-022, ¶ 22. Dr.
Frezza relies on Caudle in support of his
argument that the second factor weighs in
favor of extending immunity. The district
court found that Caudle “has limited application in the context of this matter[.]”
We agree. In Caudle, Texas residents
employed by the State of New Mexico alleged in a Texas court that their retirement
plan provided by the State of New Mexico
“violate[d] the . . . Texas Constitution and
. . . the Fourteenth Amendment to the
United States Constitution.” 108 S.W.3d
at 321. The Texas Court of Appeals began
by stating that “Texas should extend comity by recognizing the laws and judicial
decisions of other states unless (1) the
foreign state declines to extend comity to
Texas or sister states under the same or
similar circumstances, or (2) the foreign
statute produces a result in violation of
Texas’[s] own legitimate public policy.” Id.
It concluded that since New Mexico had
“extended comity to its sister states[,]” it
would consider New Mexico a “cooperative jurisdiction.” Id. It then determined
that since it is the responsibility of each
state to determine the constitutionality
of its own statutes, “[i]t is . . . good public
policy for Texas to avoid scrutinizing its
sister states’ statutes to determine their
constitutionality under either the United
States Constitution or the Texas Constitution.” Id. at 322. The court consequently
ordered the matter dismissed. Id.
{27} Caudle is not dispositive of the
second comity factor for two reasons.
First, under Dr. Frezza’s reasoning, Texas’s
determination to extend comity in one
case would mean that it would have no
reason to analyze whether to apply comity
in any other contexts. In other words, the
first case extending comity to New Mexico
would settle the issue forever. But since
the Texas courts have analyzed whether
to apply comity in cases both before and
after Caudle, this is clearly not the course
Texas has taken. See, e.g., Robertson v.
Estate of McKnight, 609 S.W.2d 534, 537
(Tex. 1980) (applying New Mexico law on
interspousal immunity); N.M. State Univ.
v. Winfrey, No. 11-10-00213-CV, 2011 WL
3557239, at *2 (Tex. App. Aug. 11, 2011)
(comparing the jurisdiction and venue
provisions of the NMTCA and the TTCA
and applying the NMTCA). Nor does such
an approach comport with the Sam court’s
characterization of the comity analysis as
“fact-intensive,” indicating that the factors
must be examined in the context of the circumstances of each case. 2006-NMSC-022,
¶ 12; see City of Raton v. Ark. River Power
Auth., 611 F. Supp. 2d 1190, 1212 (D.N.M.
2008) (discussing the Sam holding and
concluding that a “case-by-case approach
to the comity analysis” is required). Second, the policy interest served by dismissal
of the Caudle matter—that New Mexico
courts should interpret the constitutionality of New Mexico’s statutes—is entirely
different from the policies at play here. See
108 S.W.3d at 322.
{28} Winfrey,2 which is not cited by either party and was not considered by the
district court, provides more compelling
support for Dr. Frezza’s position than
Caudle. In Winfrey, the Texas Court of
Appeals considered whether to apply the
2Winfrey is not reported in South Western Reporter 3d. According to the commentary associated with Texas Rules of Appellate
Procedure 47.2 and 47.7, however, “[a]ll opinions and memorandum opinions in civil cases issued after the 2003 amendment [to the
rules] have precedential value.” Id. (notes and comments). Hence, we consider Winfrey as a precedential opinion of the Texas Court
of Appeals.
24
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NMTCA as a matter of comity where a
Texas resident sued New Mexico State
University (NMSU) for damage done to
his sheep when a weather balloon owned
or operated by NMSU fell on his land in
Texas. 2011 WL 3557239, at *1. NMSU
moved for dismissal based on a lack of
jurisdiction, which the district court denied. Id. The court of appeals started its
analysis by reiterating the two-part test
for comity set out in Caudle, stating that
“comity . . . will be applied to a cooperating
state so long as the law of that state does
not offend Texas public policy.” Winfrey,
2011 WL 3557239, at *1. After determining that New Mexico was a cooperating
state, the court examined the purpose of
the NMTCA and TTCA and their provisions related to jurisdiction and venue. Id.
at *1-2. It concluded, “Our comparison
of the[se] similar provisions leads to the
conclusion that [NMSU has] satisfied the
second prong of the principle of comity:
the jurisdiction and venue provisions of
the [NMTCA], as applicable in this case,
do not violate the public policy of Texas.”
Id. The court concluded, therefore, that it
should apply the NMTCA and that since
the NMTCA (1) vested exclusive jurisdiction in the New Mexico district courts and
(2) required that the suit be brought in
Santa Fe County, the suit should be dismissed “for lack of jurisdiction.” Id. at *1,
2 (internal quotation marks omitted); see
NMSA 1978, § 41-4-18(B) (1976) (“Venue
for any claim against the state or its public
employees, pursuant to the Tort Claims
Act, shall be in the district court for the
county in which a plaintiff resides, or in
which the cause of action arose, or in Santa
Fe county.”).
{29} Although Texas applied New Mexico
law on jurisdiction and venue in Winfrey,
the Winfrey holding does not compel us
to conclude that Texas would apply the
NMTCA’s other provisions under the
circumstances of this case. The Winfrey
court’s analysis was based on the similarity of the two acts’ venue and jurisdiction
requirements. Cf. Univ. of Iowa Press v.
Urrea, 440 S.E.2d 203, 205 (Ga. Ct. App.
1993) (stating that where two statutes’
provisions were “conceptually identical”
the forum state “should recognize and
give effect to the legislatively declared
policy of [the other state] as a matter of
comity”). The court did not consider the
portions of the NMTCA and TTCA at
issue in this case, which are very different. Consequently, it is not clear whether
Texas would extend immunity to New
Mexico under the circumstances here. But
see Hawsey v. La. Dep’t of Soc. Servs., 934
S.W.2d 723, 727 (Tex. App. 1996) (affirming dismissal of an action under Louisiana
law and stating, “Louisiana’s waiver of
sovereign immunity is more extensive
than that of Texas, yet we cannot say it
violates our public policy”); Greenwell v.
Davis, 180 S.W.3d 287, 298 (Tex. App.
2005) (“Even though the amounts of the
waivers differ, applying Arkansas’ limited
waiver of sovereign immunity would not
be contrary to Texas public policy. The
mere fact that the law of the other state
differs from Texas does not render it so
contrary to Texas public policy that Texas
courts will refuse to enforce it.” (footnote
omitted)). Although neither Caudle nor
Winfrey are conclusive on this issue, we
will assume without deciding that Texas
would extend immunity to New Mexico
in a similar situation. See Hall, 440 U.S. at
425(stating that the Court has “presumed
that the [s]tates intended to adopt policies
of broad comity toward one another [based
on] state policy”); Sam, 2006-NMSC-022,
¶ 16 (acknowledging the presumption).
{30} We turn to the third factor: “whether the forum state has a strong interest in
litigating the case[.]” Sam, 2006-NMSC022, ¶ 22. Although its interest is bounded
by the limits of the NMTCA, id. ¶ 25,
“New Mexico has a particular interest
in providing compensation or access to
the courts to residents of the state.” Id. ¶
26. Here, if Texas law applies, Ms. Montaño would be left without any recourse
against Dr. Frezza or his employer. This
fact heightens New Mexico’s interest in
providing a forum. Cf. Flemma v. Halliburton Energy Servs., Inc., 2012-NMCA-009,
¶ 25, 269 P.3d 931 (“New Mexico courts
will apply New Mexico law to automobile
insurance contracts that were formed in
other states if innocent accident victims
would be otherwise unprotected.”), rev’d
on other grounds, 2013-NMSC-022, 303
P.3d 814; Levert v. Univ. of Ill. at Urbana/
Champaign ex rel. Bd. of Trustees, 20022679, pp. 17-18 (La. App. 1 Cir. 9/26/03),
857 So. 2d 611, 622 (holding that “because
[the] plaintiffs/appellants have recourse
to individually seek full redress of their
claims in [the sister state], [that state’s]
sovereign immunity law does not violate
Louisiana’s public or judicial policies”).
On the other hand, because Dr. Frezza
is an employee of the State of Texas, that
state also has an interest in the case. Cf.
Zavala v. El Paso Cnty. Hosp. Dist., 2007NMCA-149, ¶ 34, 143 N.M. 36, 172 P.3d
173 (stating, in the context of a personal
jurisdiction analysis, that because the defendant “[h]ospital [wa]s not only located
in Texas but . . . [was] also an entity of the
government of the State of Texas[, i]t [was]
. . . clear that Texas has a substantially
stronger sovereignty interest [than New
Mexico]”). Weighing these competing interests, we conclude that the district court
did not abuse its discretion in determining
that “the State of New Mexico has equal
or greater interest in litigating this matter
than does the State of Texas[.]”
{31) The final factor is whether application of Texas law will prevent forum shopping. Sam, 2006-NMSC-022, ¶ 22. Ms.
Montaño conceded below that it would,
and the district court concluded that “forum shopping would be diminished by an
application of [Texas law].” See Newberry
v. Ga. Dep’t of Indus. & Trade, 336 S.E.2d
464, 465 (S.C. 1985) (holding that refusal
to apply the sued state’s law would permit
forum shopping). We discern no error in
this conclusion by the district court.
{32} In sum, the first and third factors
weigh against applying the TTCA, whereas
the second and fourth factors weigh in
favor of it. Again, Sam does not provide
guidance on how these factors should be
balanced against each other or whether
one factor should be weighed differently
from the others. Conforming to Sam’s
approach, however, we start with the notion that New Mexico should recognize
Dr. Frezza’s immunity as expressed in the
TTCA, unless doing so will violate substantial New Mexico policy. Put another
way, whether to apply the TTCA depends
on the bedrock question guiding the comity analysis: would application of Texas law
in this case be contrary to New Mexico’s
public policies? See Sam, 2006-NMSC-022,
¶ 22; City of Raton, 611 F. Supp. 2d at 1212
(“Rather than all-or-nothing, a court must
assure that, for each claim for which it applies another state’s sovereign immunity
rules, the application of the other state’s
rules does not offend the state’s public
policy in a substantial way.”).
{33} We look to the NMTCA for an expression of our public policy as to tort claims
against governmental bodies. See Torres,
1995-NMSC-025, ¶ 10 (“[I]t is the particular
domain of the [L]egislature, as the voice of
the people, to make public policy.”). In a
legislative declaration accompanying the
NMTCA, “[t]he legislature recognize[s]
the inherently unfair and inequitable results which occur in the strict application
of the doctrine of sovereign immunity.”
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NMSA 1978, § 41-4-2(A) (1976). It also
recognizes that “the area within which the
government has the power to act for the
public good is almost without limit, and
therefore government should not have the
duty to do everything that might be done.”
Id. In enacting the NMTCA, therefore,
“the [L]egislature expressed its intent to
achieve balance between the public policy
supporting compensation of those injured
by public employees and the public policy
militating in favor of limiting government
liability.” Niederstadt v. Town of Carrizozo,
2008-NMCA-053, ¶ 14, 143 N.M. 786, 182
P.3d 769.
{34} A comparison of the NMTCA and
the TTCA reveals that the balance struck
by the New Mexico Legislature is substantively different from that struck by Texas
legislators. See NMSA 1978, §§ 41-4-1 to
-30 (1976, as amended through 2013); Tex.
Civ. Prac. & Rem. Code Ann. §§ 101.002
to .109 (1985, as amended through 2013).
Both statutes address the extent to which
each state has waived its sovereign immunity. See § 41-4-2(A) (“[I]t is declared to be
the public policy of New Mexico that governmental entities and public employees
shall only be liable within the limitations of
the [NMTCA].”); § 101.021. The NMTCA
and TTCA are also similar in that they
provide for limits on recovery (although
the limits are different), see § 41-4-19 and
§ 101.023, and waive immunity for certain
injuries arising from the operation of “ ‘any
motor vehicle, aircraft[,] or watercraft.’ ”
Section 41-4-5; see § 101-021(1)(A).
{35} But there are stark differences between the statutes. For instance, the TTCA
waives sovereign immunity in only three
limited cases: “(1) claims arising from
the operation or use of motor-driven
vehicles or equipment; (2) claims caused
by a condition or use of tangible personal
or real property; and (3) claims arising
from premises defects.” Paz v. Weir, 137
F. Supp. 2d 782, 820 (S.D. Tex. 2001); see
§§ 101.021, .022. In contrast, New Mexico
has waived sovereign immunity for negligent conduct in eight different categories, including medical facilities, health
care providers, law enforcement, public
utilities, highways/streets, and airports,
and does not limit liability to incidents
involving motor vehicles or personal or
real property. See §§ 41-4-5 to -12.
{36} The NMTCA and TTCA also differ
dramatically in their provisions concerning the liability of individual government
employees. The TTCA does not allow actions against employees in their individual
26
or personal capacity. Under the TTCA, a
suit naming a government employee must
be dismissed upon the employee’s motion, unless the plaintiff files an amended
complaint naming the appropriate governmental unit instead of the employee
within thirty days of the employee’s motion. Section 101.106(f). There is no such
limitation on suits against public employees in the NMTCA. See § 41-4-4(A), (B)
(addressing waiver of immunity for public
employees); Abalos v. Bernalillo Cnty. Dist.
Attorney’s Office, 1987-NMCA-026, ¶ 18,
105 N.M. 554, 734 P.2d 794 (“Each of the
eight waivers listed in Sections 41-4-5 to
-12 identifies public employees; it follows
that one can sue the public employee and
the agency or entity for whom the public
employee works.”).
{37} Finally, while both statutes have
a notice requirement, the requirements
function very differently. In Texas, plaintiffs must file a notice within six months of
“the day that the incident giving rise to the
claim occurred.” § 101.101(a). Failure to
do so results in dismissal. See Univ. of Tex.
Health Sci. Ctr. at Houston v. McQueen,
431 S.W.3d 750, 754 (Tex. App. 2014)
(“The failure to give notice under [S]ection 101.101 requires dismissal of a suit.”).
This requirement functions as a statute
of repose: it cuts off claims six months
after the negligent conduct, regardless of
whether the plaintiff ’s injury had been
discovered. See Putthoff v. Ancrum, 934
S.W.2d 164, 174 (Tex. App. 1996) (“[T]he
discovery rule does not apply to claims
made under the [TTCA].”); Black’s Law
Dictionary 1637 (10th ed. 2014) (defining
“statute of repose” as “[a] statute barring
any suit that is brought after a specified
time since the defendant acted . . ., even
if this period ends before the plaintiff has
suffered a resulting injury”).
{38} In contrast, while the NMTCA
requires notice “within ninety days after
an occurrence giving rise to a claim for
which immunity has been waived under
the [NMTCA],” Section 41-4-16(A), New
Mexico cases have applied the “discovery
rule” to the notice requirement. Under this
rule, the time period for the notice requirement to bring a medical malpractice case
under the NMTCA begins to run only
when “the plaintiff knows or with reasonable diligence should have known of the
injury and its cause.” Maestas v. Zager,
2007-NMSC-003, ¶ 19, 141 N.M. 154, 152
P.3d 141; Emery v. Univ. of N.M. Med. Ctr.,
1981-NMCA-059, ¶ 29, 96 N.M. 144, 628
P.2d 1140 (extending the discovery rule to
the NMTCA’s notice requirement), abrogated on other grounds by Maestas, 2007NMSC-003. Thus, the NMTCA’s notice
requirement is much more flexible than
that in the TTCA. Cf. Timmons v. Univ.
Med. Ctr., 331 S.W.3d 840, 846, 848 (Tex.
App. 2011) (recognizing that “the operation of section 101.101 [when the plaintiff
did not discover the injury until after six
months had passed] appears harsh and
unfair”); Streetman v. Univ. of Tex. Health
Sci. Ctr. at San Antonio, 952 S.W.2d 53,
56 (Tex. App. 1997) (same); Univ. of Tex.
Med. Branch at Galveston v. Greenhouse,
889 S.W.2d 427, 430, 432 (Tex. App. 1994)
(same).
{39} We conclude that applying the
TTCA here would violate New Mexico
public policy by (1) contravening New
Mexico’s broader waiver of immunity,
(2) prohibiting suits against individuals,
and (3) imposing a notice requirement
substantially more restrictive than that in
the NMTCA. See Sam, 2006-NMSC-022, ¶
27 (stating that “[t]o apply [another state’s
shorter] statute of limitations would violate our own public policy of allowing two
years to file suit [under the NMTCA]”).
There may also be other ways the statutes
differ substantially; we have not conducted an exhaustive comparison of the
two statutes. It is sufficient to hold that,
to avoid infringing on the public policy
expressed in the NMTCA, the immunity
extended to Dr. Frezza with regard to the
three areas discussed above should be
coextensive with the immunity enjoyed
by New Mexico governmental agencies
and employees. See id.
{40} This conclusion is consonant with
Sam, in which the Court concluded that
comity principles required the extension
of “a limited grant of immunity to Arizona”
where both states had passed similar tort
claims acts but with different statutes of
limitation, and held that the NMTCA’s
statute of limitations applied. Id. Similarly,
in Hyatt, the United States Supreme Court
affirmed the Nevada Supreme Court’s
refusal to apply California law, which
provided the Franchise Tax Board with
complete immunity, because Nevada law
waived immunity for intentional torts. 538
U.S. at 493-94.
{41} As a general matter, it is appropriate to use the NMTCA to provide the
contours—or measure—of the immunity
Dr. Frezza should enjoy in New Mexico
courts. Texas and its employees cannot
and should not be treated as purely private litigants for the simple and obvious
Advance Opinions
reason that they are not. Employees of a
sister state acting within the scope of their
employment do not become purely private
citizens when they cross state lines or when
they are subjected to the jurisdiction of
the courts of another state. See City of Red
Wing v. Ellsworth Cmty. Sch. Dist., 617
N.W.2d 602, 607 (Minn. Ct. App. 2000)
(holding that it was appropriate to apply
Minnesota’s municipal tort liability laws
as a measure of the extent of a Wisconsin
teacher’s monetary liability). Using the
contours of the NMTCA levels the field
and assures that non-New Mexico actors
are not provided greater protection than
New Mexico provides its employees and
governmental agencies. See Head, 749 P.2d
at 10; In re Clark’s Will, 1955-NMSC-063, ¶
7. Cf. Hansen v. Scott, 2004 ND 179, ¶ 11,
687 N.W.2d 247, 251 (“We hold the Texas
defendants are immune from suit to the
same extent the State of North Dakota
would grant immunity to its employees under North Dakota law. Applying the same
level of immunity does not compromise
the public policy of North Dakota.”); and
cf. Ann Woolhandler, Interstate Sovereign
Immunity, 2006 Sup. Ct. Rev. 249, 291 (stating that one approach employed in comity
analyses “involves ignoring defendantstate forum limitation provisions, notice
and time limits, and liability and damages
limitations, and applying the forum’s law
of state suability.” (footnotes omitted)).
{42} In sum, we affirm the district court
with one caveat: the district court’s order
seems to impose New Mexico law in toto
on the proceedings. It is premature to decide that the TTCA is fully displaced. We
limit our holding to the three subjects discussed in paragraphs 34-39 of this Opinion. The applicability of other provisions
of the NMTCA should be determined by
the district court on remand.
CONCLUSION
{43} We affirm in part, vacate in part, and
remand for proceedings consistent with
this Opinion.
{44} IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge
I CONCUR:
CYNTHIA A. FRY, Judge
JONATHAN B. SUTIN, Judge
(concurring in part and dissenting in
part).
SUTIN, Judge (concurring in part and
dissenting in part).
{45} I concur in the majority’s resolution
of the comity question. I respectfully dis-
sent in regard to the majority’s approbation
given to the district court’s application of
the place-of-the-wrong rule.
A.INTRODUCTION: Dr. Frezza’s
Points on Appeal
{46} Dr. Frezza’s points on appeal, aside
from the writ of error issue, are that (1) the
place-of-the-wrong rule and public policy
concerns require that Texas law apply to
Ms. Montaño’s claims, and (2) the doctrine
of comity requires the application of Texas
law. The Texas law to which Dr. Frezza
refers is the TTCA.
1. The Place-of-the-Wrong Point
{47} In his motion to dismiss, Dr. Frezza
asserted that the TTCA applied under the
doctrine of comity because Texas was the
place of the wrong. He indicates that the
district court determined that he was not
entitled to immunity from suit under the
TTCA because, based on the place-of-thewrong rule and on principles of comity,
New Mexico law applied. Dr. Frezza erroneously conflates two distinct doctrines.
Further, in arguing the place-of-the-wrong
rule, Dr. Frezza relies on New Mexico
conflict-of-laws cases having nothing to
do with the circumstance of competing
foreign state and forum state sovereign
immunity laws and interests requiring a
comity analysis. See Torres, 1995-NMSC025; Terrazas, 2006-NMCA-111; In re
Estate of Gilmore, 1997-NMCA-103.
{48} Ms. Montaño buys in to the confusing and erroneous application of the
place-of-the-wrong rule. She argues that
the place of the wrong is New Mexico and
that the district court properly determined
that the nexus of facts pled by her raised
both a question of choice of law (meaning
selecting, pursuant to a conflict-of-laws
analysis, the law of one state over another
pursuant to a place-of-the-wrong rule
analysis) and comity.
{49} Although they combine the application of the place-of-the-wrong rule with
the rule of lex loci delicti (lex loci), neither
Dr. Frezza nor Ms. Montaño says what particular New Mexico law was to be applied
under the place-of-the-wrong rule as to Dr.
Frezza’s immunity defense. In ruling that
the place-of-the-wrong rule applied, that
the place of the wrong was New Mexico,
and that the law to be applied was New
Mexico law, the district court also failed
to indicate what New Mexico law applied
to Dr. Frezza’s immunity defense.
2. The Comity Point
{50} Separately addressing comity, Dr.
Frezza says that, in addition to the fact
that Texas is the place of the wrong, “prin-
ciples of comity require the application
of Texas law[,]” namely, the immunity
provided under the TTCA. He discusses
solely the TTCA and the NMTCA in the
bout between the immunity provisions
within sovereigns’ tort claims acts. Dr.
Frezza analyzes the four factors in Sam,
2006-NMSC-022, ¶¶ 22-28. As to the
state-interest factor, Dr. Frezza seems to
again insert the place-of-the-wrong and
lex loci rules into the comity analysis when
he argues that “New Mexico’s interest is
limited by virtue of the fact that all of the
alleged negligent acts occurred in Texas[,]”
and thus that the TTCA applies under
comity. Ms. Montaño’s comity analysis, of
course, ends with comity not extendable
to Texas. Following a Sam analysis, the
district court denied Dr. Frezza’s motion
to dismiss insofar as it was based on his
comity position that the TTCA applied.
B.DISCUSSION: Misplaced
Application of the Place-of-theWrong Rule
1.Application of the Place-of-theWrong Rule—What Ifs?
{51} The choice-of-law, conflict-of-laws
analysis path chosen by the district court
and the parties begged the unanswered
question: When the determination is made
that New Mexico law applies, which New
Mexico law is to be applied? If New Mexico
law on sovereign immunity is the law to be
applied, that law would be the NMTCA. If
the NMTCA were to be applied, the question necessarily becomes, can the NMTCA
apply to claims against a physician for
medical negligence when the physician
is an employee of a Texas governmental
entity and is not an employee of a New
Mexico governmental entity?
{52} The answer to the foregoing question is that the NMTCA cannot be applied
to that physician. In particular, because Dr.
Frezza is not employed by a New Mexico
governmental entity, the NMTCA cannot
be applied to him. See § 41-4-3(B), (C),
(F), (H). The upshot is that, given that the
NMTCA does not apply to Dr. Frezza and
barring the application of the TTCA, his
existence as a medical malpractice defendant in a New Mexico lawsuit is such that
he would have no New Mexico immunity
from suit. Neither the parties nor the district court engaged in any such analysis.
{53} Questions arise: Were the district
court to have determined that Texas law
instead of New Mexico law applied as to
Dr. Frezza’s immunity defense and that
the TTCA applied, would this then have
foreclosed any comity analysis? Would
27
Advance Opinions
Torres have been applicable to override on
public policy grounds, the application of
the TTCA? See Torres, 1995-NMSC-025,
¶¶ 13-14 (holding that, in a choice-of-law
and conflict-of-laws, place-of-the-wrong
analysis, based on New Mexico’s public
policy, New Mexico law would control notwithstanding that the place of the wrong
was California). Would a Torres override
on public policy grounds be a decision
tantamount to a refusal to extend comity?
{54} It is noteworthy that in Sam our Supreme Court noted that this Court in Sam
v. Estate of Sam, 2004-NMCA-018, ¶ 15,
135 N.M. 101, 84 P.3d 1066, rev’d by 2006NMSC-022, employed a choice-of-law,
place-of-the-wrong rule analysis. See Sam,
2006-NMSC-022, ¶ 7. Our Supreme Court
in Sam appears to have purposely chosen
to disregard the place-of-the-wrong rule
and to stick solely to comity, see id. ¶¶ 7-8,
although one might infer that, in reversing
this Court, our Supreme Court was not
disregarding the place-of-the-wrong rule
in the case, but was holding that the placeof-the-wrong rule was not applicable. It is
also noteworthy that, in Sam, the Supreme
Court also mentioned that this Court, in
Sam, 2004-NMCA-018, ¶ 14, also determined that the NMTCA was inapplicable
“because [the plaintiff] was not employed by
New Mexico and was therefore not covered
by [the NMTCA].” Sam, 2006-NMSC-022,
¶ 6. We have no indication whether the Supreme Court considered the significance of
this Court’s determination that the plaintiff
in Sam was not employed by New Mexico
and not covered under the NMTCA.
2. Misapplied Place-of-the-Wrong Rule
{55} The foregoing questions and conundrums aside, the place-of-the-wrong rule
had no place in this comity case. None of
the choice-of-law, conflict-of-laws, placeof-the-wrong/lex loci rule New Mexico
cases, including in particular, Gilmore,
Terrazas, and Torres, are comity cases. As
well, and notably, neither our Supreme
Court in Sam, nor the United States Supreme Court in Hyatt and Hall, on which
Sam relied, engage in a place-of-the-wrong
or lex loci analysis. See Hyatt, 538 U.S.
488; Hall, 440 U.S. 410. It was error for
the district court to rely on and apply the
place-of-the-wrong and lex loci rules in
regard to the immunity defense issue in
this case. I therefore disagree with the majority’s “perceiv[ing] no error in the district
court’s . . . place-of-the-wrong analysis[,]”
see Majority Op. ¶ 12, which brings me to
Sam and comity, and also to the majority’s
opinion on comity in the present case.
28
C.DISCUSSION: Sam
{56} Sam involved the issue whether
New Mexico claimants suing an Arizona
government employee in New Mexico
were barred by the Arizona Tort Claims
Act’s one-year statute of limitations, the
NMTCA’s two-year statute of limitations,
or New Mexico’s three-year general statute
of limitations for tort actions. Sam, 2006NMSC-022, ¶ 7; Sam, 2004-NMCA-018,
¶¶ 13-15 (setting out the three statutes
of limitations). The action was filed just
before three years had run. Sam, 2006NMSC-022, ¶ 3.
{57} On appeal from the district court
decision in Sam, this Court determined
that the NMTCA did not apply to an
Arizona government employee. Sam,
2004-NMCA-018, ¶ 13. Citing Hyatt and
Hall, we held that “New Mexico, as the
forum state in this case, is not required
to recognize Arizona’s statute of limitations attaching or the sovereign immunity
granted to its public employees.” Sam,
2004-NMCA-018, ¶ 13. We further held
that the NMTCA was inapplicable because
the plaintiff “was not a public employee
covered under our Tort Claims Act.” Id.
¶ 14. Declaring that sovereign immunity
and public employment were irrelevant to
the issues in the case, this Court turned to
the place-of-the-wrong rule as applied in
Torres and held that “because the accident
resulting in [the victim’s] death occurred
in New Mexico, New Mexico’s three-year
statute of limitations [in NMSA 1978,
Section 37-1-8 (1976)] applies to this
suit.” Sam, 2004-NMCA-018, ¶ 15. In a
certiorari proceeding, our Supreme Court
saw the case differently and reversed this
Court. Sam, 2006-NMSC-022, ¶¶ 1, 20.
{58} The issue before our Supreme Court
in Sam was whether the New Mexico district court should, as a matter of comity,
recognize the sovereign immunity of a sister state, Arizona. Id. ¶ 1. Sam stated at the
outset that it would discuss “what factors
a New Mexico court should consider to
determine if comity should be extended.”
Id. ¶ 8. Sam analyzed Hall and stated that
the difference between California and
Nevada law as to a cap on damages “was
sufficient for California to justify not extending comity.” Sam, 2006-NMSC-022,
¶ 17. Sam declared that “[a]s a general rule,
comity should be extended. Only if doing
so would undermine New Mexico’s own
public policy will comity not be extended.”
Id. ¶ 21.
{59}In Sam, our Supreme Court at the
outset indicated that the question was
whether, with respect to the plaintiff ’s
claim, the Arizona Tort Claims Act’s oneyear statute of limitations should be applied under comity, whether the NMTCA’s
two-year statute of limitations, or whether
the New Mexico three-year statute of
limitations on common law tort claims,
should be applied. Id. ¶¶ 1, 3. The Court
noted that Arizona and New Mexico both
waived sovereign immunity with respect
to the plaintiff ’s claim, but further noted
that the waiver of sovereign immunity was
“restrained by strict statutes of limitations.”
Id. ¶ 1.
{60} The Court in Sam addressed whether it should extend comity to Arizona for
application of Arizona’s one-year statute
of limitations, holding that “we believe
that New Mexico should extend a limited
grant of immunity to Arizona because
both states have done so through tort
claims acts. However, we should only
extend New Mexico’s two-year statute of
limitations instead of applying Arizona’s
one-year statute of limitations.” Id. ¶ 27.
The Court did not apply Arizona’s tort
claims act’s one-year statute. Id. ¶¶ 20, 27.
The Court decided to “extend a limited
grant of immunity to Arizona” and also to
“extend [the NMTCA’s] two-year statute
of limitations.” Id. ¶ 27 (emphasis added).
Thus, in regard to Dr. Frezza’s immunity
defense, in its analysis of whether to extend
comity, instead of using the words “apply”
or “application” with reference to law, our
Supreme Court chose the word “extend”—
that is, under the comity analysis, New
Mexico would (1) “extend” immunity to
Arizona, and (2) at the same time would
“extend” the New Mexico statute of limitations “as a matter of comity” or “based
on the principles of comity” or “through
comity” to Arizona. Id. ¶¶ 13, 20, 22, 27.
{61} What I glean from Sam is that:
(1) the Court extended comity to Arizona
with respect to Arizona’s limited sovereign immunity waiver, leaving Arizona
immunity in place and applicable, but
did not extend comity with respect to
Arizona’s statute of limitations; and (2) the
Court, without expressly saying so, under
principles of comity actually applied the
NMTCA statute of limitations in place of
Arizona’s statute of limitations as though
the NMTCA statute of limitations was
Arizona law. The Court employed the
notion “extending” a New Mexico law,
namely, NMTCA provisions, presumably
because those provisions cannot “apply” to
a person who is not an employee of a New
Mexico governmental entity.
Advance Opinions
{62} I am unaware of how New Mexico,
by extending comity to Arizona by recognizing the sovereign immunity provision
in the Arizona tort claims act, also under
or based on comity or comity principles
“extends” the NMTCA statute of limitations provisions “to Arizona” or “to an Arizona public employee.” Sam, 2006-NMSC022, ¶¶ 13, 20, 27 (emphasis added). I do
not find support in either Hyatt or Hall
for applying the doctrine of comity or its
principles by “extending” the NMTCA to
the sister state, in effect incorporating the
NMTCA into Arizona’s tort claims act. I
am unaware of any cases outside of Sam
that resolves comity issues in this manner.
D. DISCUSSION: Following Sam Here
{63} The majority essentially follows in
Sam’s footsteps, stating that its “conclusion
is consonant with Sam[.]” Majority Op.
¶ 40. Like in Sam, which “extended” the
NMTCA’s two-year statute of limitations
to an Arizona government employee to bar
a claim filed in New Mexico against that
employee—a person clearly not covered
under the NMTCA—the majority “uses”
the NMTCA’s waiver of immunity to strip
Dr. Frezza of immunity, when Dr. Frezza
clearly is not covered under the NMTCA.
The majority does not use the words “extend” or “extend under comity or comity
principles.” The majority states that “it is
appropriate to use the NMTCA to provide
the contours—or measure—of the immunity Dr. Frezza should enjoy,” Majority
Op. ¶ 41 (emphasis added), and further
states that NMTCA’s immunity-related
provisions “should be coextensive with
the immunity enjoyed by New Mexico
governmental agencies and employees.
Majority Op. ¶ 39 (emphasis added).
{64} In resorting to the words “extending,” “coextensive,” and “use,” the Court
in Sam and the majority here employ legal
fictions. Sam and the majority have created theories or methodologies by which
NMTCA provisions either become a part
of or replace a provision in a sister state’s
tort claims act to bar a claim (as in Sam)
or to bar a defense (as in the case here).
{65} It may well be that the legal-fiction
approach necessarily must be employed to
arrive at a satisfactory result in these sovereign immunity, comity circumstances.
Given Sam, I cannot fault the majority’s
approach here. The majority tweaks the
Sam analysis by discarding the notion of
“extending” the NMTCA to the sister state.
The majority’s “use” and “coextensive”
theories are, according to the majority,
“consistent” with Sam. The majority’s word
selection perhaps more descriptively suggests what the Court in Sam was doing.
{66} I go along with the majority’s resolution albeit there exists no underlying explanation as to how a Texas resident and
government employee with TTCA immunity, who is recognized as such when sued
in New Mexico, will in essence be treated
as a New Mexico resident and New Mexico
government employee, consistent with or
under the NMTCA, with no immunity,
when, in all probability, he will be denied
any benefit under the NMTCA and may
even receive no TTCA protection. With
the understanding that the TTCA violates
New Mexico public policy, I go along, given
the apparent absence of a better resolution
based on any underlying rational support
and given the incomplete manner in which
the case was developed and handled on Dr.
Frezza’s motion to dismiss.3
{67} Comity policy resides with each
state in dealing with sovereignty issues
such as those in the case before us. See
Hall, 440 U.S. at 425-26. State courts
exercise reasonable discretion through
practical wisdom and general fairness in
their judicial-law-making determinations
and development. See Albert Tate, Jr., The
Law-Making Function of the Judge, 28 La.
L. Rev. 211, 214-17 (1968). This function
is appropriate in our policy-driven comity
circumstance. Note Judge Tate’s poignant
view:
I . . . emphasize again what all
lawyers know and what few laymen can deny: That the ordinary
and customary operation of our
judicial process requires the
courts on occasion to create lawrules where needed to decide the
case[] and that these law-rules
operate with prospective effect
to regulate the clashes of similar
interests in the future, in much
the same manner (although more
limited in scope) as does a new
statute.
Id. at 217. The import of a legal fiction into
a law-rule where needed to decide the case
can be appropriate, if done through practical wisdom and general fairness, as long as
we recognize and make clear what we are
doing and why we are doing it. Although
there might be a different solution for the
case before us than to employ a legal fiction,4 I am satisfied that the methodology
employed is consistent with reason and
fairness and appropriate in this case. That
is why I concur in the majority’s solution.
JONATHAN B. SUTIN, Judge
3I note that the standard of review in Sam for a court’s analysis under comity is abuse of discretion. See Sam, 2006-NMSC-022,
¶ 12. I am unsure why that standard was chosen. One would think that the standard would be de novo, given (1) the claimed error
was the district court’s denial of a motion to dismiss under Rule 1-012(B)(6), and (2) the underlying question is whether the TTCA
violates New Mexico public policy. See Sam, 2006-NMSC-022, ¶ 9 (stating that we generally view a denial of a motion to dismiss
de novo); Nat’l Bank of Ariz. v. Moore, 2005-NMCA-122, ¶¶ 6-7, 138 N.M. 496, 122 P.3d 1265 (indicating that we review de novo
whether New Mexico public policy is violated).
4One might offer a possible alternative comity solution by determining that there exist two strong New Mexico public policies
militating against granting immunity to physicians sued in New Mexico for medical malpractice: one, lack of immunity under the
NMTCA; two, lack of immunity for a non-New Mexico government physician sued for medical malpractice in New Mexico. If the
TTCA violates both policies, New Mexico courts will not extend comity to Texas on immunity. The statutes and common law related
to medical malpractice actions control. Under those laws, the physician has no New Mexico immunity. It is doubtful that this analysis
would “fly” under Sam, considering that Sam appears to have chosen not to explore public policy underlying the three-year statute
of limitations and whether the Arizona statute offended that public policy.
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Whitener Law Firm, P.A. is currently seeking a full-time associate attorney to handle
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9th Judicial District AttorneySenior Trial Attorney, Assistant Trial
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The Ninth Judicial District Attorney is accepting resumes and applications for an
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years' experience preferably in the area of
finance or representation of financial institutions in real estate related matters. Licensed
to practice law in New Mexico and all New
Mexico District Courts. *** All applicants
must apply through our website at, https://
workforcenow.adp.com/jobs/apply/posting.
html?client=mypremier ***
Associate Attorney
Assistant Attorney General
Santa Fe Position
Full time
Job Reference # 1074
The New Mexico Office of the Attorney General, Special Prosecutions Division an Equal
Employment Opportunity (EEO) employer
is seeking applicants for an “At Will” (not
classified) Assistant Attorney General position in Santa Fe. An “At Will” position means
any state office job or position of employment
which is exempt from the service and the Personnel Act,” Section 10- 9-4 NNMSA 1978,
the employee serves at the pleasure of the
New Mexico Attorney General. Duties of an
Assistant Attorney General include prosecution of criminal cases throughout the State of
New Mexico from initiation to completion.
Conducting training for law enforcement,
prosecutors and justice personnel. Candidate
must have a minimum of 5 years of experience in prosecution or criminal law. Primary
location will be in Santa Fe with travel as
dictated by case assignments and training
responsibilities. Salary is commensurate
with experience. Resume, writing sample and
three professional references must be received
at the Office of the Attorney General by 5:00
p.m. on October 2, 2015. Applicants selected
for an interview must notify the Attorney
General’s Office of the need for a reasonable
accommodation due to a Disability. Please
send resumes to: The Office of the Attorney
General, Attn: Human Resource Division;
E-mail: HRD@nmag.gov – (505) 827-6000;
P.O. Drawer 1508, Santa Fe, NM 87504-1508.
CYFD Attorney
The Children, Youth and Families Department is seeking to fill a vacant Children’s
Court Attorney Senior Position, salary range
is $39-$69K annually, depending on experience and qualifications the attorney will represent the department in abuse/neglect and
termination proceedings and related matters.
The ideal candidate will have experience in
the practice of law totaling at least three
years and New Mexico licensure is required.
The position is Located in Alamogordo, New
Mexico. Benefits include medical, dental, vision, paid vacation, and a retirement package.
Please contact the following for information
on how to apply and to ascertain the closing date for the position. Lynne Jessen (575)
373-6403 or lynne.jessen@state.nm.us. The
state of New Mexico is an EOE. To apply for
these positions go to www.state.nm.us/spo/
and click on JOBS, then click on Apply for a
Job Online.
Atencio Law Office, P.C. is looking for an
Associate Attorney to work with Hal Atencio in his adoption, assisted reproduction
technology law, estate planning, probate,
guardianship, and civil litigation practice.
1-4 years experience preferred as well as a
strong commitment to advocating for our
clients. Time management skills and a desire
to build a practice are critical. Salary based
on experience. Email cover letter and resume
to Amanda@atenciolawpc.com.
Wanted for Immediate Hire a
Bilingual (Spanish/English)
Entry Level Attorney!
We are a workers’ compensation and personal injury firm dedicated to our clients.
We will train the right person and new
bar members are welcome to apply. We are
seeking an entry level attorney to assist our
senior attorneys and paralegals with workers’
compensation and personal injury matters,
such as: Researching and drafting motions,
pleadings, memoranda of law and other legal
documents; Discovery requests, depositions,
hearings and mediations; Covering hearings,
depositions and mediations; Communicating and meeting with clients; Related duties.
Excellent opportunity to grow for the right
person! Requirements: You must be a member
of the New Mexico Bar; You must be Spanish/English bilingual; You must be a reliable
team player that is willing to learn; You
must be client-driven and highly motivated.
Benefits offered include medical, dental, vision and life insurance, as well as 401k, paid
firm holidays and paid time off. Compensation commensurate with experience. Please
send resume and writing samples to jobs@
mslfirm.com.
Staff Attorney
The New Mexico Gaming Control Board
(NMGCB) is seeking a Staff Attorney for our
Office of the General Counsel. The NMGCB
Staff Attorney is responsible for providing
administrative prosecutorial services to the
NMGCB, as well as providing legal advice
to the NMGCB and NMGCB staff members
on various matters including contract issues, personnel issues, licensure issues and
regulatory matters. If you are interested in
this position and would like to apply, please
visit the New Mexico State Personnel Office
website at www.spo.state.nm.us . The job
number for this position is 2015-04646 and
position number is 46469. Deadline to apply
is October 18, 2015. If you have any questions, please contact Donovan Lieurance at
(505) 750-4580.
Paralegal
PNM Resources has an immediate opening
for a paralegal experienced in the areas of
financing; commercial and transactional
matters; Securities and Exchange Commission filings and disclosures; and corporate
governance matters. Duties include researching and drafting documents; reviewing documents for accuracy; assisting with
transactional closings; coordination with the
company’s departments and outside counsel
and law firms; and a variety of administrative duties. Successful candidates should be
well organized, proficient in MS Office and
other legal software, possess outstanding
verbal and written skills, and the ability to
work independently. PREFERENCES: High
school diploma or GED and six years related
legal experience, or equivalent combination
of education and/or experience related to
the discipline. A bachelor’s degree from a
four-year college or university will be given
preference. For a full job description, requirements and to apply, go to www.pnm.com/
careers. Deadline is no later than October 14,
2015. PNM is an EEO/AA employer. Women,
minorities, disabled individuals and veterans
are encouraged to apply.
Experienced Litigation Legal Assistant
Butt Thornton & Baehr PC has an opening for
an experienced litigation legal assistant (5+
years). Must have experience in the practice
area of Medical Malpractice. Must be well
organized, and have the ability to work independently. Excellent typing/word processing
skills required. Generous benefit package.
Salary DOE. Send resume and references to
Office Administrator, P.O. Box 3170, Albuquerque, NM 87190, or fax to 505-889-8870.
Experienced Legal Assistant
Bauman, Dow & Stambaugh, P.C., a civil
litigation firm, is seeking an experienced
litigation assistant. Required qualifications:
1)Three years experience as a litigation assistant; 2)Proficiency with Timeslips and
Microsoft Word; 3)Proficiency or ability to
learn Adobe Acrobat and Excel; and 3)Experience drafting and filing basic pleadings.
Our litigation is often complex, multi-party
and plaintiff oriented. We would like to find
the right person who will help take on our
clients’ causes and pursue them vigorously.
Please send resume and cover letter, including requested compensation, to drs@bdsfirm.
com. We offer competitive compensation,
employer matched 401(k), and 100% employer paid Presbyterian health insurance,
which includes gym membership.
34
Paralegal/Policy Filing Analyst
Experienced paralegal needed for fast paced
insurance company regulatory compliance
department. Excellent computer skills, ability
to multitask, e-filing experience, and being a
good team player are all required. Insurance
company and SERFF filing experience preferred. Critical thinking skills and ability to
work independently is a must. Please refer to
our website for job description: http://www.
centuryservicecorp.com/polfileanalyst.html.
Benefit package available; Pay DOE. Inquiries
confidential. Email cover letter, resume, references, writing sample, and salary requirements to lcraig@centuryservicecorp.com.
Paralegal
F/T paralegal with 1+ years experience needed for fast paced family law office. Excellent
computer skills, ability to multitask and being
a good team player are all required. Pay DOE.
Fax resume: 242-3125 or mail: Law Offices of
Lynda Latta, 715 Tijeras NW, 87102 or email:
holly@lyndalatta.com No calls.
Services
Briefs, Research, Appeals—
Leave the writing to me. Experienced, effective, reasonable. cindi.pearlman@gmail.com
(505) 281 6797
O/G Title Opinions
Experienced, dual licensed NM/TX attorney
seeks NM o/g title work. Fee split on contract.
References available. nmtitleopinions@
gmail.com
620 Roma N.W.
620 ROMA N.W., located within two blocks
of the three downtown courts. Rent includes
utilities (except phones), fax, internet, janitorial service, copy machine, etc. All of this is
included in the rent of $550 per month. Up
to three offices are available to choose from
and you’ll also have access to five conference
rooms, a large waiting area, access to full
library, receptionist to greet clients and take
calls. Call 243-3751 for appointment to inspect.
2000 Square Foot Building For Sale
Call Commercial Brokerage, LLC for details
505 828-9188
Professional Uptown Space Albuquerque
Office space on Pennsylvania N.E., between
Constitution and Lomas. One executive office, one secretary station, shared reception
area, two shared conference rooms, and
shared break room. Cabled separately for
telephone and data services. Includes parking, janitorial, security, utilities. Base rent $750.00 per month. Extra services negotiable.
Call 266-8787.
Law Office Located Near
Courthouses
1500 Mountain Road NW. Share space with
four other seasoned individual attorneys.
Rent includes all utilities (except phone),
share fax, copier, conference room, kitchen,
secretarial space, maintenance, security
system, ample parking. Built for law offices.
$410.00/month. Call (505) 400-5515
Office Space
Professional Offices
Professional offices in 22-story Albuquerque
Plaza office tower adjacent to the Hyatt.
Plaza500 executive offices include covered
parking, VoIP phone with phone line, highspeed internet, free WiFi, conference rooms,
professional reception service, copy and
fax machine, and nightly janitorial service.
Located at 201 3rd Street NW, Suite 500.
Contact Sandee at 505-999-1726 or sgalietti@
allegiancesw.com.
Custom Built Lawyer’s
Office Building
For Sale - located on Lomas near 15th Street,
just west of all three courthouses. 5,196 SF.
Great visibility and easily identifiable address.
Two offices feature Kiva fireplaces, one office
has outside balcony. Asking $735,000 Call
Dan Hernandez at Berger Briggs 247-0444
or 480-5700 Cell
SUBMISSION DEADLINES
All advertising must be submitted via
e-mail by 4 p.m. Wednesday, two weeks
prior to publication ( Bulletin publishes
every Wednesday). Advertising will be
accepted for publication in the Bar Bulletin
in accordance with standards and ad rates
set by the publisher and subject to the
availability of space. No guarantees can be
given as to advertising publication dates or
placement although every effort will be made
to comply with publication request. The
publisher reserves the right to review and edit
ads, to request that an ad be revised prior to
publication or to reject any ad. Cancellations
must be received by 10 a.m. on Thursday,
13 days prior to publication.
For more advertising information, contact:
Marcia C. Ulibarri at 505-797-6058
or email mulibarri@nmbar.org
We’re ready
to print YOUR
business package!
(505) 881-2566
201 Third St. NW, Suite 500, Albuquerque, NM 87102 • P: 505.944.9030 • F: 505.944.9091 • mtt@marytorreslaw.com
NM Divorce & Custody Law LLC
Michael Schwarz
Michael Schwarz
New Mexico Board Certified Specialist
Employment & Labor Law
Attorney & Counsellor at Law
Mary Ann R. Burmester
201 Third St. NW, Suite 500, Albuquerque, NM 87102 • P: 505.944.9030 • F: 505.944.9091 • mtt@marytorreslaw.com
Mary Ann R. Burmester
z
Michael Schwar
at Law
Attorney
2727 San Pedro NE, Suite 114
201 Third St. NW, Suite 500
We help families solve problems.
Michael Schwarz
P.O. Box 1656, Santa Fe, NM
Mary T. Torres
Attorney & Counsellor
(505) 881-2566
2727 San Pedro NE | Suite 114
87504-1656
201 Third St. NW, Suite 500
P: 505.944.9030
F: 505.944.9091
mtt@marytorreslaw.com
P.O. Box 1656
Santa Fe, NM 87504-1656
505.988.2053
barrister@pobox.com
mrb@nmdivorcecustody.com
www.nmdivorcecustody.com
Law Offices of
Law Offices of
Peter F. Staiti, llc
FAMILY
7400 Montgomery Blvd. NE,NEW
Suite 39, MEXICO
Albuquerque, NM
87109
Tel: (505) 243-9290 • Fax: (505) 715-5845 • peter@peterstaitilaw.com
7400 Montgomery Blvd. NE, Suite 39, Albuquerque, NM 87109
Tel: (505) 243-9290 • Fax: (505) 715-5845 • peter@peterstaitilaw.com
MAILING ADDRESS:
PO Box 3070
Albuquerque, NM 87190-3070
LAW
Law Offices of
llc NM 87110
2727 San Pedro
Suite 114, Albuquerque,
F.NE,Staiti,
Peter
P.O. Box 1656
www.nmdivorcecustody.com
Suite 39
7400 Montgomery Blvd. NE,
7400 Montgomery Blvd. NE, Suite 39
Tel: (505) 243-9290 • Fax: (505) 715-5845
peter@peterstaitilaw.com
Santa Fe, NM 87504-1656
505.988.2053
barrister@pobox.com
P.O. Box 1656
Santa Fe, NM 87504-1656
CITY PLACE SUITE 2000
2155 LOUISIANA NE
P.O. BOX 3070
87190
Law Offices of
PHYSICAL ADDRESS:
City Place | Suite 2000
2155 Louisiana NE
Amanda A. Pagan
NEW MEXICO FAMILY LAW
Amanda A. Pagan
Tatiana D. Engelmann
attorney at law
Attorney at Law
tel: (505) 508-3789 • fax: (505) 214-5590
aap@NMFamilyLawPC.com
PO Box 25626 • Albuquerque, NM 87125-0626
www.NMFamilyLawPC.com
CITY PLACE | SUITE 2000
2155 LOUISIANA NE
P.O. BOX 3070 (87190-3070)
(505) 883-3070
Fax (505) 889-3111
e-mail: tde@atkinsonkelsey.com
web: www.atkinsonkelsey.com
Quality, full-color printing.
Local service with fast turnaround.
tel: (505) 508-3789 • fax: (505) 214-5590 • aap@NMFamilyLawPC.com
PO Box 25626 • Albuquerque, NM 87125-0626
www.NMFamilyLawPC.com
Telephone (505) 883-3070 | Facsimile (505) 889-3111
www.AtkinsonKelsey.com
For more information, contact Marcia Ulibarri
at 505-797-6058 or mulibarri@nmbar.org
Ask about your member discount.
DIGITAL PRINT CENTER
505.988.2053
barrister@pobox.com
ANNUAL MEETING APP
Free in your
app store
Customize your own schedule!
Program schedule • Exhibitors • Events
Maps • Speakers
Available for iOS and Android.
For assistance, visit the Cyber Spot.
Input the URL onto your phone’s browser to automatically be navigated to the respective
store: https://crowd.cc/s/2YUs
Sponsored by:
Locate the app through search terms, such as “New Mexico,” “Bar,” “Update,” “CLE,” “Breakout,”
“Justice,” “Ethics,” “State Bar,” “Annual Meeting.”
The event is accessible to BlackBerry devices, Windows phone users, and desktop computers
through your web-based version: https://event.crowdcompass.com/nmbar-am15
Important Note: BlackBerry and Windows phone users are welcome to use the mobile web version, which
behaves much like the app, but does need connectivity in order to view.
Visit us at exhibit space #3.

9/30 - State Bar

Transcription

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