December 17, 2014 • Volume 53, No. 51 - State Bar of New ... Bar Bulletin - December 17, 2014 - Volume 53, No. 51 CENTER FOR LEGAL EDUCATION All live seminars and video replays are

Inside This Issue

December 17, 2014 • Volume 53, No. 51

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

BBC Appointment to the Commission on Professionalism .......................... 5

National “Celebrate Pro Bono” Week ................. 9

Clerk’s Certificates ................................................ 14

From the New Mexico Court of Appeals

2014-NMCA-103, No. 32,911: Rayos v. New Mexico Department of Corrections................................................... 17

2014-NMCA-104, No. 33,048: Trei v. Amtx Hotel Corporation .................... 22

2014-NMCA-105, No. 33,215: Little v. Baigas ................................................... 25

2014-NMCA-106, No. 32,697: Rabo Agrifinance, Inc. v. Terra XXI, LTD. ............................................... 28

Hot Sauce by Penny Simpson (see page 3) Weems Art Gallery

2 Bar Bulletin - December 17, 2014 - Volume 53, No. 51

CENTER FOR LEGAL EDUCATION

All live seminars and video replays are held at the State Bar Center, 5121 Masthead NE, Albuquerque. They include course materials, CLE credit and filing fees for New Mexico.

Full-day programs also include continental breakfast, breaks and buffet lunch.

CLE Planner

Register online at www.nmbar.org or call 505-797-6020.

Dec

. 22

Dec

. 23

Dec

. 29

Dec

. 30

Internet Investigative/Legal Research on a Budget and Legal Tech Tipswith Carole Levitt, Esq. and Mark Rosch “Internet for Lawyers”

6.0 G

also available viaLIVE WEBCAST

$219-$279

Learn to find missing people and gather background intelligence, discover a free legal research database provided by the State Bar— Fastcase—and become an expert searcher by learning to use new U.S. government sites and free legal research apps.

$89-$109

Presented by Joey D. Moya, Clerk of Court and Chief Counsel, Supreme Court of New Mexico with Associate Counsel Neil Bell and Sally Paez

Supreme Court Case Update and New Rules Process

2.0 G


$89-$109

Attend this hilarious presentation that uses video clips from TV shows, news broadcasts and depositions to demonstrate how lawyers and judges have violated various tenets of the Rules of Professional Conduct. Judge Christina Argyres and Ellen Argyres will teach you how the situations should have been handled.

Ethics and Professionalism: Advice from the Bench and BarPresented by the Hon. Christina Argyres, 2nd Judicial District Court; Ellen Argyres, Downs at Albuquerque

2.0 EP


NBC’s comedy series Bad Judge

1.0 EP6.0 G


Monday, Dec. 22, 2014 • 9 a.m.-4:15 p.m. State Bar Center, Albuquerque

Oil and Gas: From the Basics to an In-Depth StudyTuesday, Dec. 30, 2014 • 8:30 a.m.-5 p.m. State Bar Center, Albuquerque

Monday, Dec. 29, 2014 • 9-11 a.m. State Bar Center, Albuquerque

Tuesday, Dec. 23, 2014 • 9-11 a.m. State Bar Center, Albuquerque

$245-$309

http://www.nmbar.org

Bar Bulletin - December 17, 2014 - Volume 53, No. 51 3

Notices ................................................................................................................................................................4Legal Education Calendar .............................................................................................................................7National “Celebrate Pro Bono” Week .........................................................................................................9Writs of Certiorari ......................................................................................................................................... 11Court of Appeals Opinions List ................................................................................................................. 13Clerk’s Certificates ......................................................................................................................................... 14Recent Rule-Making Activity ..................................................................................................................... 16Opinions

From the New Mexico Court of Appeals2014-NMCA-103, No. 32,911: Rayos v. New Mexico Department of Corrections ......... 17

2014-NMCA-104, No. 33,048: Trei v. Amtx Hotel Corporation ............................................. 22

2014-NMCA-105, No. 33,215: Little v. Baigas ............................................................................. 25

2014-NMCA-106, No. 32,697: Rabo Agrifinance, Inc. v. Terra XXI, LTD. ............................. 28

Advertising ...................................................................................................................................................... 31

Officers, Board of Bar Commissioners Erika Anderson, President Martha Chicoski, President-Elect J. Brent Moore, Vice President Scotty A. Holloman, Secretary-Treasurer Andrew J. Cloutier, Immediate Past President

Board of Editors Ian Bezpalko, Chair George C. Kraehe Kristin J. Dalton Maureen S. Moore Jocelyn C. Drennan Tiffany L. Sanchez Jennifer C. Esquibel Mark Standridge Bruce Herr Joseph Patrick Turk

State Bar Staff Executive Director Joe Conte Managing Editor D.D. Wolohan 505-797-6039 • [email protected] Communications Coordinator Evann Kleinschmidt 505-797-6087 • [email protected] Graphic Designer Julie Schwartz [email protected] Account Executive Marcia C. Ulibarri 505-797-6058 • [email protected] Digital Print Center Manager Brian Sanchez Assistant Michael Rizzo

©2014, State Bar of New Mexico. No part of this publica-tion may be reprinted or otherwise reproduced without the publisher’s written permission. The Bar Bulletin has the authority to edit letters and materials submitted for publication. Publishing and editorial decisions are based on the quality of writing, the timeliness of the article, and the potential interest to readers. Appearance of an article, editorial, feature, column, advertisement or photograph in the Bar Bulletin does not constitute an endorsement by the Bar Bulletin or the State Bar of New Mexico. The views expressed are those of the authors, who are solely responsible for the accuracy of their citations and quotations. State Bar members receive the Bar Bulletin as part of their annual dues. The Bar Bulletin is available at the subscription rate of $125 per year and is available online at www.nmbar.org.The Bar Bulletin (ISSN 1062-6611) is published weekly by the State Bar of New Mexico, 5121 Masthead NE, Albuquerque, NM 87109-4367. Periodicals postage paid at Albuquerque, NM. Postmaster: Send address changes to Bar Bulletin, PO Box 92860, Albuquerque, NM 87199-2860.

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

December 17, 2014, Vol. 53, No. 51

Table of Contents

Meetings

DeceMber

19 Family Law Section BOD, 9 a.m., via teleconference

19 Trial Practice Section BOD, Noon, State Bar Center

January 20156 Bankruptcy Law Section BOD, Noon, U.S. Bankruptcy Court

8 Employment and Labor Law Section BOD, Noon, State Bar Center

8 Business Law Section BOD, 4 p.m., via teleconference

state bar Workshops

January 20157 Divorce Options Workshop 6 p.m., State Bar Center

7 Civil Legal Fair 10 a.m.–1 p.m., Second Judicial District Court, Third Floor Conference Room, Albuquerque

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

31 Consumer Debt/Bankruptcy Workshop 9 a.m., The Law Office of Kenneth Egan, Las Cruces

Cover Artist: Penny Thomas Simpson (www.pennyartworks.com) is a watercolor and acrylic artist living in Las Cruces. She primarily paints fruit, flowers and still life featuring dramatic lighting.

mailto:[email protected]







http://www.pennyartworks.com


NoticesProfessionalism Tip

With respect to my clients:

I will advise my client against tactics that will delay resolution or which harass or drain the financial resources of the opposing party.

court neWsFirst Judicial District CourtMass Reassignment of Cases Effective Dec. 24, a mass reassignment of cases will occur pursuant to NMSC Rule 23-109, the Chief Judge Rule. All of the cases previously assigned to Hon. Jennifer L. Attrep, Division IX, will be reassigned to Hon. David K. Thomson, Division VI. Parties who have not previ-ously exercised their right to challenge or excuse will have 10 days from Jan. 7, 2015, to challenge or excuse the judge pursuant to Rule 1-088.1.

Second Judicial District CourtNotice of Mass Reassignment to Judge Cristina T. Jaramillo Pursuant to the constitution of the State of New Mexico, Cristina T. Jaramillo has been elected to Division VIII at the Second Judicial District Court. Effective Dec. 8, Judge Jaramillo was assigned criminal court cases previously assigned to Judge Kenneth H. Martinez, Division XXIV. Pursuant to Supreme Court Rule 1-088.1 parties who have not yet exercised a pe-remptory excusal will have 10 days from Dec. 24 to excuse Judge Jaramillo.

Notice of Mass Reassignment to Judge Victor S. Lopez Pursuant to the constitution of the State of New Mexico, Victor S. Lopez has been elected to Division XXVII at the Second Judicial District Court. Effective Dec. 1, Judge Lopez was assigned civil court cases previously assigned to Judge Ned S. Fuller, Division XXVII. Pursuant to Supreme Court Rule 1-088.1 parties who have not yet exercised a peremptory excusal will have 10 days from Dec. 24 to excuse Judge Lopez.

Fifth Judicial District CourtMass Reassignment Effective Dec. 4, a mass reassignment of cases occurred pursuant to NMSC Rule 23-109. Judge Raymond Romero, Division I, Eddy County was assigned all pending cases with case types child support, child support enforcement and parentage in which the child support enforcement division is a party. Pursuant to Supreme Court Rule 1-088.1, parties who have not yet exercised a peremptory excusal will have 10 days from Jan. 7, 2015, to excuse Judge Romero.

13th Judicial District CourtInvestiture Ceremony for Hon. Cheryl H. Johnston The Judges and employees of the 13th Judicial District Court invite all to attend the investiture ceremony of Hon. Cheryl H. Johnston, Division VIII, Sandoval County. The ceremony will take place at 3:30 p.m., Jan. 9, 2015, at the Sandoval County District Courthouse, 2nd floor, courtroom 2013. For more information, contact Terecina Marquez at 505-865-4291, ext. 2104.

Investiture Ceremony for Hon. Cindy M. Mercer The Judges and employees of the 13th Judicial District Court invite all to attend the investiture ceremony of Hon. Cindy M. Mercer, Division VI, Valencia County. The ceremony will take place at 3 p.m., Dec. 19, at the Valencia District Court-house, 3rd floor ceremonial courtroom. Refreshments will follow the ceremony. For more information, contact Terecina Marquez at 865-4291, ext. 2104.

Notice of Case Reassignments (Sandoval County) Hon. Cheryl H. Johnston, elected to Division VIII, Sandoval County, 13th Judicial District, was assigned all cases previously assigned to Hon. Gina R. Man-fredi effective Dec. 8. Pursuant to NMRA 1-088.1, parties who have not yet exercised a peremptory excusal in these reassigned cases will have until Dec. 31 to excuse the successor judge. Questions about case as-signments should be directed to Christal Bradford, chief clerk, at 867-2376, ext. 1123, or Arlene Baca, leadworker, ext. 1148.

Notice of Case Reassignments (Valencia County) Hon. Cindy M. Mercer, elected to Divi-sion VI, Valencia County, 13th Judicial District, was assigned all cases previously assigned to Hon. Pedro G. Rael effective Dec. 8. Pursuant to NMRA 1-088.1, parties who have not yet exercised a peremptory excusal in these reassigned cases will have until Dec. 31 to excuse the successor judge. Questions about case assignments should be directed to Phillip Romero, chief clerk,

at 865-4291, ext. 2130, or Alonzo Garcia, leadworker, ext. 2173.

Bernalillo County Metropolitan CourtJudicial Applicants Eight applications were received for the judicial vacancy on the Bernalillo County Metropolitan Court due to the non-retention of Hon. Cristina T. Jaramillo, effective Jan. 1, 2015. The Metropolitan Court Judicial Nominating Committee will meet at 9 a.m. on Dec. 18, at the Bernalillo County Metropoli-tan Courthouse, 401 Lomas NW, Room 849, Albuquerque, to evaluate the ap-plicants. The Committee meeting is open to the public and members of the public who want to be heard about any of the candidates will have an opportunity to be heard. The names of the applicants in alphabetical order are:

Rudolph B. ChavezRoderick John Duran II

Jason R. GreenleeDavid N. Hernandez

Nicole W. MossCarlos F. Pacheco

Melchior F.R. Savarese IIIChris J. Schultz

Mass Reassignment of Cases A mass reassignment of cases will oc-cur pursuant to Rule 23-109 NMRA, the Chief Judge Rule, and as a consequence of the recent election. Effective Dec. 15, Judge Courtney B. Weaks, elected to Divi-sion IV, will be assigned criminal court cases previously assigned to Judge Chris Schultz; Judge Jill M. Martinez, elected to Division VIII, will be assigned criminal court cases previously assigned to Judge R. John Duran; Judge Vidalia Chavez, elected to Division XIV, will be assigned criminal court cases previously assigned to Judge Peg Holguin; and Judge Kenny C. Montoya, elected to Division XV, will be assigned criminal court cases previously assigned to Judge Jason Greenlee. Pursu-ant to Rule 7-106 NMRA, parties who have not yet exercised the right to excuse a judge will have 10 days from Dec. 15 to file a notice of excusal.


www.nmbar.org

New Mexico Lawyers and Judges

Assistance Program

Help and support are only a phone call away. 24-Hour Helpline

Attorneys/Law Students505-228-1948 • 800-860-4914

Judges888-502-1289

www.nmbar.org/JLAP/JLAP.html

All New Mexico attorneys must notify both the Supreme Court and the State Bar of changes in contact information.

Supreme Court Email: attorneyinfochange @nmcourts.gov Fax: 505-827-4837 Mail: PO Box 848

Santa Fe, NM 87504-0848

State BarEmail: [email protected]: 505-797-6019Mail: PO Box 92860 Albuquerque, NM 87199Online: www.nmbar.org

aDDress changes

U.S. Bankruptcy CourtNew Bankruptcy Rules Briefing The new local bankruptcy rules will be discussed at a brown bag lunch at noon on Dec. 19 at the U.S. Bankruptcy Courthouse, 500 Gold SW, 10th floor, in Albuquerque. Hon. David Thuma and Patti Hennessy will be the presenters. No R.S.V.P. is necessary.

U.S. District Court for the District of New MexicoAmendments to Local Rules of Civil Procedure With concurrence of the Article III Judges the amendments to the Local Rules of Civil Procedure of the U.S. District Court, for the District of New Mexico, have been approved and adopted. The amendments include D.N.M.LR-Civ. 83.2, Bar Admissions, Memberships and Dues and the addition of 83.13, Convic-tion of a Crime. Amendments went into effect Dec. 1. The latest version of the Local Rules of Civil Procedure can be found at www.nmcourt.fed.us.

Court Closure The U.S. District Court for the District of New Mexico will close at 1 p.m. on Dec. 24. Court will resume on Dec. 26. After-hours access to CM/ECF will remain available as regularly scheduled. Stay cur-rent with the U.S. District Court for the District of New Mexico by visiting the Court’s website, www.nmcourt.fed.us.

Magistrate Judge Position The Judicial Conference of the U.S. has authorized the appointment of a full-time U.S. Magistrate Judge for the District of New Mexico at Albuquerque. The current annual salary of the position is $183,172. The term of office is eight years. A full public notice and application forms for the U.S. Magistrate Judge position are posted in the Clerk’s Office of the U.S. District Court at all federal courthouses in New Mexico, and on the Court’s website, www.nmcourt.fed.us. Application forms may also be obtained from the intake counter at all federal courthouses in New Mexico or by calling 575-528-1439. Applications must be received by Jan. 9, 2015. All applications will be kept confidential.

state bar neWsAttorney Support Groups• Jan. 5, 2015, 5:30 p.m. First United Methodist Church, 4th

and Lead SW, Albuquerque (The group meets the first Monday of the month.)

• Jan. 12, 2015, 5:30 p.m. UNM School of Law, 1117 Stanford

NE, Albuquerque, Room 1119 (The group meets the second Monday of the month.)

• Feb. 16, 2015, 7:30 a.m. First United Methodist Church, 4th

and Lead SW, Albuquerque (The group meets the third Monday of the month.)

• For more information, contact Bill Stratvert, 505-242-6845.

Board of Bar CommissionersAppointment to the Commission on Professionalism The Board of Bar Commissioners will make one appointment for a non-lawyer public member to the Commission on Professionalism for a two-year term. Non-lawyer public members who want to serve on the Commission should send a letter of interest and brief résumé by Dec. 31 to Executive Director Joe Conte, State Bar of New Mexico, P.O. Box 92860, Albuquer-que, NM 87199-2860; fax to 828-3765; or e-mail to [email protected].

Paralegal Division2015 Board Members The results of the election have been tabulated. Paralegal Division Board Members for 2015 are: Chair Eileen Casadevall; Chair-Elect Yolanda Ortega; Secretary Kathleen D. Blea; Treasurer Tina L. Kelbe, CP; Immediate Past Chair Andrew Polnett, ACP; Director Karen S. Atkinson; Director Carolyn L. Cochran; Director Nettie L. Condit; Director Yolanda Hernandez; Director Barbara Lucero, CP; and Director Nova D. Mulenberg-Bonnet. The Division con-gratulates the new and returning officers and directors for 2015 and is looking forward to the new year.

unMLaw LibraryHours Through Jan. 4, 2015Building & Circulation Monday–Thursday 8 a.m.–8 p.m. Friday 8 a.m.–6 p.m. Saturday 8 a.m.–5 p.m. Sunday Noon–8 p.m.Reference Monday–Friday 9 a.m.–6 p.m. Librarian on call 3–6 p.m. Saturday–Sunday ClosedClosures Dec. 24, 2014–Jan. 2, 2015

Members, their employees, and immediate family members

can enjoy a discounted rate of $34/month (plus tax) with access

to all five club locations, group fitness classes and free supervised child care.

Bring proof of SBNM membership. Contact Shawn Gale,

[email protected] or 505-814-2355. Visit www.defined.com.

Member BenefitF e a t u r e d


mailto:@nmcourts.gov



http://www.nmbar.org/JLAP/JLAP.html

http://www.nmcourt.fed.us





http://www.defined.com


www.nmbar.org

other neWsHazelden Betty Ford FoundationFree Stress and Addiction Webinar Lawyers struggle with anxiety and de-pression at rates substantially higher than average and this is especially true during the holidays. Patrick R. Krill, director of the Hazelden Betty Ford Foundation Legal Professionals Program, will present an enlightening look at why the legal profes-sion presents so many pitfalls for mental health, and some useful strategies for avoiding those traps this holiday season. Attendees will learn about stressors unique to working in a legal practice, and practical stress reduction strategies. Th e one-hour webinar will be held at 11 a.m. on Dec. 17. For more information, contact Ann Tucker, [email protected].

Workers’ Compensation AdministrationDestruction of Mediation Exhibits In accordance with NMAC 11.4.4.9(Q), Forms, Filing and Hearing Procedures: Return of Records, on an ongoing basis, the New Mexico Workers’ Compensation Administration will be destroying all mediation exhibits fi led in cases in which the recommended resolution has been issued, excluding cases on appeal. The exhibits are stored at 2410 Centre Ave SE, Albuquerque, New Mexico, 87106. For more information, contact the Workers’ Compensation Administration at 505-841-6810 or 1-800-255-7965 and ask for Dana Chavez, clerk of the court.

Note that the fi nal issue of 2014 will be the Dec. 24 Bar Bulletin (Vol. 53, No. 52). Submit notices and editorial content by Monday, Dec. 15 to be included.

To be included in the Jan. 7, 2015, issue, all notices and editorial content must be submitted by Monday, Dec. 22.

Submit content to [email protected].

Bar Bulletin Holiday Deadlines

For whatever you purchase or pay, from bar licensing fees to advertising, you are now receiving invoices and statements by email.

PAPERLESS Billing





December

17 Technethics 3.0 EP Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

17 How to Be a Rock Star Lawyer, the Ethical Way

3.0 EP Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

17–18 Estate and Succession Planning with Family Business, Parts 1–2

2.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

18 Fire in the Hole: What’s Exploding in New Mexico Mining Law

5.5 G, 1.0 EP Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

19 Medical Malpractice Review Before the New Mexico Medical Review Commission


19 Ethics and Confidentiality: What Is, What Isn’t, and What Can Be?

1.0 EP National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

22 Internet Investigative/Legal Research on a Budget and Legal Tech Tips

6.0 G Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

23 Supreme Court Case Update and New Rules Process

2.0 G Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

23 Don’t Call Saul: ‘Breaking Bad’ Ethics (2014 Annual Meeting)

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

23 The End of Law Firms: How the Cloud Is Changing the Practice of Law; and The ABA Model Rules with Regard to the Changing Practice of Law (2014 Annual Meeting)

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

23 2014 Tax Symposium 7.0 G, 1.0 EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

23 2014 Family Law Institute: Get with the Times: Bringing Your Family Law Practice Into 2015 (Day One)

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

29 Ethics and Professionalism: Advice from the Bench and Bar

2.0 EP Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

29 Police Misconduct: Understanding §1983 Civil Rights Actions

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

29 The Law and Horses in New Mexico 6.7 G Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

29 2014 N.M. Family Law Institute: Get with the Times: Bringing Your Family Law Practice into 2015 (Day Two)

5.0 G, 1. EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

30 Oil and Gas: From the Basics to an In-Depth Study


Legal Education

http://www.nmbarcle.org


















Legal Education www.nmbar.org

January 2015

6 Estate Planning in 2015: A Look Forward


8 2015 UCC Update: Secured Transactions, Notes, Sales and More


13 Structuring Minority-Stake & “Class B” Interests in Business Arrangements


14 Will Contests: Common Grounds for Challenges & How to Defeat or Avoid Them


15 Employees, Social Media, Smartphones, Tablets: Legal Issues for Employers


16 Attorney Ethics & the Use of Credit Cards in Law Firms


20–21 Selling Closely-Held Companies to Employees, Parts 1–2


22 Estate Planning for Pre- and Post-Nuptial Agreements


23 Ethics of Maintaining Client Confidences in a Digital World


27 Splitting the Difference: “Earnouts” in Business Sales


28 Ground Leases in Real Estate Transactions


30 Ethics, Disqualifications & Sanctions
















Celebrate

Pro Bono

2014

First Judicial DistrictPro Bono Volunteer Recognition Luncheon and CLE at Santa Fe Hilton (in conjunction with First Judicial District Bar Association): 56 attorneys in attendance

CLE: "Guardians Ad Litem: Before and After Kimbrell" presented by Larry Kronen, Esq. and Kathrin Kinzer-Ellington, Esq.

Second Judicial DistrictCivil Legal Clinic at Second Judicial District Court sponsored by Sutin, Thayer & Browne: 8 attorneys helped 31 individuals

Law-La-Palooza at the West Mesa Community Center: 55 attorneys helped 142 individuals

Seventh Judicial DistrictPro Bono Committee Chair Michelle Ritt-Martinez recognized pro bono attorneys in Catron, Socorro, and Sierra Counties for their exceptional volunteer work

Fifth Judicial District (Lea County)

(Chaves County)

Legal fair and CLE at Hobbs City Hall: 20 attorneys helped 36 individuals

CLE: “Things Every Lawyer Should Know” presented by Gary Don Reagan, Esq.

Local providers Option, Inc. and the Guidance Center were on hand to give information to the public about their organizations at the legal fair

Legal fair at the Roswell Adult and Senior Center: 24 attorneys helped 55 individuals

Sixth Judicial District (Luna County)

(Grant County)

Legal fair at Luna County District Court: 11 attorneys helped 53 individuals

Legal fair at Grant County Convention Center: 11 attorneys helped 24 peopleFourth Judicial District

Legal fair and CLE at New Mexico Highlands University: 17 attorneys helped 91 individuals

Pro bono Volunteer Recognition Luncheon at the El Rialto Restaurant in Las Vegas, NM: Lifetime Achievement Award dedicated to the late Craig Fretwell and attorneys David Silva, Suzanne Gaulin and Danelle Smith recognized for their outstanding pro bono work

ird Judicial DistrictPurchase of copier and offi ce supplies to enable volunteer attorneys to better assist low-income individuals with their legal matters in Doña Ana County

The American Bar Association designated the week of October 19-25, 2014 as National "Celebrate Pro Bono" week. In New Mexico, the local Judicial District Pro Bono Committees have extended this celebration to span the entire month, off ering a number of pro bono events across the state. This year, events included free legal fairs, pro bono recognition luncheons, Continuing Legal Education classes, and more. In all, 262 volunteer attorneys helped 814 New Mexicans with their legal matters.

Sharon Shaheen and Lucas Conley at the First Judicial District Pro Bono Luncheon

Second Judicial District Law-La-Palooza Arthur Vargas gives a thumbs up for pro bono at the Fourth Judicial District Legal Fair

Michael H. Stone and Gary Don Reagan at the 5th Judicial District

(Lea Co.) Legal Fair


13th Judicial DistrictLegal clinics in Sandoval, Valencia, and Cibola Counties: 28 attorneys helped 100 individuals

Eighth & Tenth Judicial DistrictsVirtual Legal Fair in Questa, NM and Tucumcari, NM (in conjunction with the Legal Services and Programs Committee of the State Bar of New Mexico): 9 volunteer attorneys located at the Metro Court in Albuquerque connected with 8 individuals in Questa and 15 in Tucumcari via Skype

3 volunteer attorneys were on site in both Questa and Tucumcari to help identify and assist with diffi cult legal issues

Ninth Judicial DistrictPro Bono Volunteer Recognition Luncheon and CLE in Clovis, NM: Gideon Award presented to Judge Bill Bonem

CLE: “Understanding the VA Process: The Anatomy of a Claim” presented by David Standridge, Esq. from the Justice Legal Group

Ask-A-Lawyer Legal Fair: 13 attorneys helped 46 individuals 11th Judicial District

(McKinley County)

(San Juan County)

Pro Bono Volunteer Recognition Luncheon and CLE in Gallup, NM: Approximately 30 attorneys and staff were recognized for their pro bono contributions

Pro bono committee chair Judge Grant Foutz and committee member Fran Palochak, both retiring, acknowledged for their exceptional work in coordinating McKinley County pro bono events

CLE: “ Securing Benefi ts and Services for New Mexico’s Veterans” presented by Linda Shannon, a Veterans Justice Outreach (VJO) Specialist and Susan Cross, Esq., the head of the Veteran’s Project with New Mexico Legal Aid

Legal Fair in Aztec, NM: 30 attorneys assisted 91 people

Approximately one-third of the total attorney population in the county assisted with this event

12th Judicial District (Lincoln County)

(Otero County)

Legal Fair in Ruidoso, NM: 13 attorneys helped 38 individuals

Legal Fair in Alamogordo, NM: 15 attorneys helped 82 individuals

Evangelina Mercado, Esq., the managing attorney at New Mexico Legal Aid’s Las Cruces offi ce, gave a divorce workshop

We'd like to thank the New Mexico Supreme Court for supporting these statewide events. Justices Maes, Chavez, and Daniels attended events in Santa Fe, Clovis, Roswell, Albuquerque, and Ruidoso. Also, we thank the New Mexico Supreme Court Law Library for furnishing volunteers at the Law-La-Palooza with printing and copying capabilities.

The Volunteer Attorney Program and the Access to Justice Commission would like to thank all of the attorneys, staff , judges, and service providers who came together during the

month of October to make pro bono month a success. In all, we were able to assist 814 people with their legal needs; a true celebration of pro bono in New Mexico.

ank You!

Marilyn Coulson and Richard J. Parmley at the 11th Judicial District

(San Juan Co.) Legal Fair

Fran Palochak at the 11th Judicial District (McKinley Co.)

Pro Bono Luncheon

Joanna Zimmerman, Judge Angie Schneider, Zachary Cook, and Margaret Weirich take a short coff ee break at the 12th

Judicial District (Lincoln Co.) Legal Fair

Ester Ancira and David Standridge at the Ninth Judicial Distict Pro Bono Luncheon


Joey D. Moya, Chief Clerk New Mexico Supreme Court PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860

Writs of CertiorariAs Updated by the Clerk of the New Mexico Supreme Court

Petitions for Writ of Certiorari Filed and Pending:

Date Petition FiledNo. 35,018 State v. Tafoya COA 33,556 12/05/14No. 35,017 State v. Padilla COA 33,830 12/05/14No. 34,962 Jones v. Auge COA 32,178 12/05/14No. 35,016 State v. Baca COA 33,626 12/03/14No. 35,013 State v. Maldonado COA 33,403 12/03/14No. 35,011 Segura v. Franco 12-501 12/03/14No. 35,010 Chavez v. State 12-501 12/03/14No. 35,006 State v. Brito COA 33,827 12/01/14No. 35,005 State v. Archuleta COA 32,794 11/26/14No. 35,004 State v. Olague COA 33,422 11/26/14No. 35,007 State v. Nabhan COA 32,780 11/25/14No. 35,003 State v. Foulk COA 33,347 11/25/14No. 34,999 State v. Graham COA 33,366 11/25/14No. 34,998 State v. Kalouria COA 33,655 11/24/14No. 34,997 T.H. McElvain Oil & Gas v.

Benson COA 32,666 11/24/14No. 34,993 T.H. McElvain Oil & Gas v.

Benson COA 32,666 11/21/14No. 34,992 State v. Faulkner COA 33,582 11/21/14No. 34,991 State v. Schultz COA 33,652 11/21/14No. 34,990 State v. Price COA 33,726 11/21/14No. 34,987 State v. Perkins COA 33,665 11/20/14No. 34,986 State v. Chavez-Valdez COA 33,570 11/20/14No. 34,989 State v. Jones COA 33,443 11/19/14No. 34,981 State v. Aceves COA 33,681 11/14/14No. 34,980 State v. Minoli COA 33,406 11/14/14No. 34,978 Atherton v. Gopin COA 32,028 11/14/14 Response filed 11/21/14No. 34,976 State v. Jacquez COA 33,684 11/13/14No. 34,977 State v. Ortega-Leal COA 33,625 11/12/14No. 34,975 State v. Frank COA 33,741 11/12/14No. 34,974 Moses v. Skandera COA 33,002 11/12/14 Responses filed 12/1/14No. 34,973 BOKF v. Lopez COA 34,005 11/10/14No. 34,964 Segura v. Van Dien COA 32,656 11/05/14No. 34,960 Griffin v. Casinova 12-501 11/03/14 Response ordered; due 12/8/14No. 34,949 State v. Chacon COA 33,748 10/27/14 Response filed 10/31/14No. 34,946 State v. Kuykendall COA 32,612 10/23/14No. 34,945 State v. Kuykendall COA 32,612 10/23/14No. 34,940 State v. Flores COA 32,709 10/22/14 Response ordered; due 12/8/14No. 34,939 State v. Green COA 31,787 10/21/14 Response ordered; filed 12/2/14No. 34,937 Pittman v.

N.M. Corrections Dept. 12-501 10/20/14No. 34,932 Gonzales v. Sanchez 12-501 10/16/14No. 34,931 Perry v. Franco 12-501 10/15/14No. 34,928 State v. Luevano COA 31,741 10/14/14No. 34,929 Freeman v. Love COA 32,542 10/10/14

Response filed 10/24/14No. 34,881 Paz v. Horton 12-501 10/08/14No. 34,913 Finnell v. Horton 12-501 09/22/14No. 34,916 State v. Duran COA 33,271 09/12/14No. 34,907 Cantone v. Franco 12-501 09/11/14No. 34,885 Savage v. State 12-501 09/08/14No. 34,878 O’Neill v. Bravo 12-501 08/26/14No. 34,796 Miller v. Ortiz 12-501 08/08/14No. 34,777 State v. Dorais COA 32,235 07/02/14 Response filed 7/31/14No. 34,790 Venie v. Velasquz COA 33,427 06/27/14 Response ordered; due 8/22/14No. 34,765 Helfferich v. Frawner 12-501 06/24/14No. 34,793 Isbert v. Nance 12-501 06/23/14No. 34,775 State v. Merhege COA 32,461 06/19/14No. 34,776 Serna v. Franco 12-501 06/13/14No. 34,748 Smith v. State 12-501 06/06/14No. 34,731 Helfferich v. Frawner 12-501 05/29/14No. 34,739 Holguin v. Franco 12-501 05/21/14No. 34,706 Camacho v. Sanchez 12-501 05/13/14No. 34,691 Wetson v. Nance 12-501 05/07/14 Response ordered; filed 7/14/14No. 34,633 Vespender v. Janecka 12-501 04/29/14No. 34,589 Seager v. State 12-501 04/23/14No. 34,571 Fresquez v. State 12-501 04/07/14No. 34,563 Benavidez v. State 12-501 02/25/14 Response ordered; filed 5/28/14No. 34,303 Gutierrez v. State 12-501 07/30/13No. 34,067 Gutierrez v. Williams 12-501 03/14/13No. 33,868 Burdex v. Bravo 12-501 11/28/12 Response ordered; filed 1/22/13No. 33,819 Chavez v. State 12-501 10/29/12No. 33,867 Roche v. Janecka 12-501 09/28/12No. 33,539 Contreras v. State 12-501 07/12/12 Response ordered; due 10/24/12No. 33,630 Utley v. State 12-501 06/07/12

Certiorari Granted but not yet Submitted to the Court:

(Parties preparing briefs) Date Writ IssuedNo. 33,725 State v. Pasillas COA 31,513 09/14/12No. 33,837 State v. Trujillo COA 30,563 11/02/12No. 33,877 State v. Alvarez COA 31,987 12/06/12No. 33,930 State v. Rodriguez COA 30,938 01/18/13No. 33,994 Gonzales v. Williams COA 32,274 08/30/13No. 33,863 Murillo v. State 12-501 08/30/13No. 33,810 Gonzales v. Marcantel 12-501 08/30/13No. 34,363 Pielhau v. State Farm COA 31,899 11/15/13No. 34,274 State v. Nolen 12-501 11/20/13No. 34,400 State v. Armijo COA 32,139 12/20/13No. 34,443 Aragon v. State 12-501 02/14/14No. 34,516 State v. Sanchez COA 32,994 02/14/14No. 34,548 State v. Davis COA 28,219 03/14/14

Effective December 5, 2014


Writs of CertiorariNo. 34,549 State v. Nichols COA 30,783 03/28/14No. 34,526 State v. Paananen COA 31,982 03/28/14No. 34,522 Hobson v. Hatch 12-501 03/28/14No. 34,582 State v. Sanchez COA 32,862 04/11/14No. 34,637 State v. Serros COA 31,975 05/01/14No. 34,613 Ramirez v. State COA 31,820 05/01/14No. 34,476 State v. Pfauntsch COA 31,674 05/01/14No. 34,694 State v. Salazar COA 33,232 06/06/14No. 34,669 Hart v. Otero County Prison 12-501 06/06/14No. 34,650 Scott v. Morales COA 32,475 06/06/14No. 34,630 State v. Ochoa COA 31,243 06/06/14No. 34,764 State v. Slade COA 32,681 08/01/14No. 34,789 Tran v. Bennett COA 32,677 08/01/14No. 34,769 State v. Baca COA 32,553 08/01/14No. 34,786 State v. Baca COA 32,523 08/01/14No. 34,784 Silva v. Lovelace Health

Systems, Inc. COA 31,723 08/01/14No. 34,805 King v.

Behavioral Home Care COA 31,682 08/15/14No. 34,798 State v. Maestas COA 31,666 08/15/14No. 34,843 State v. Lovato COA 32,361 08/29/14No. 34,834 SF Pacific Trust v.

City of Albuquerque COA 30,930 08/29/14No. 34,772 City of Eunice v. N.M. Taxation

and Revenue Dept. COA 32,955 08/29/14No. 34,726 Deutsche Bank v.

Johnston COA 31,503 08/29/14No. 34,668 State v. Vigil COA 32,166 09/26/14No. 34,855 Rayos v. State COA 32,911 10/10/14No. 34,728 Martinez v. Bravo 12-501 10/10/14No. 34,812 Ruiz v. Stewart 12-501 10/10/14No. 34,886 State v. Sabeerin COA 31,412/31,895 10/24/14No. 34,866 State v. Yazzie COA 32,476 10/24/14No. 34,854 State v. Alex S. COA 32,836 10/24/14No. 34,830 State v. Mier COA 33,493 10/24/14No. 34,826 State v. Trammel COA 31,097 10/24/14

Certiorari Granted and Submitted to the Court:

(Submission Date = date of oralargument or briefs-only submission) Submission DateNo. 33,548 State v. Marquez COA 30,565 04/15/13No. 33,971 State v. Newman COA 31,333 07/24/13No. 33,808 State v. Nanco COA 30,788 08/14/13No. 33,862 State v. Gerardo P. COA 31,250 08/14/13No. 33,969 Safeway, Inc. v.

Rooter 2000 Plumbing COA 30,196 08/28/13No. 33,898 Bargman v. Skilled Healthcare

Group, Inc. COA 31,088 09/11/13No. 33,884 Acosta v. Shell Western Exploration

and Production, Inc. COA 29,502 10/28/13No. 34,013 Foy v. Austin Capital COA 31,421 11/14/13No. 34,085 Badilla v. Walmart COA 31,162 12/04/13No. 34,146 Madrid v.

Brinker Restaurant COA 31,244 12/09/13No. 34,093 Cordova v. Cline COA 30,546 01/15/14No. 34,194/34,204

King v. Faber COA 34,116/31,446 02/24/14No. 33,999 State v. Antonio T. COA 30,827 02/26/14

No. 33,997 State v. Antonio T. COA 30,827 02/26/14No. 34,287 Hamaatsa v.

Pueblo of San Felipe COA 31,297 03/26/14No. 34,120 State v. Baca COA 31,442 03/26/14No. 34,583 State v. Djamila B. COA 32,333 07/29/14No. 34,122 State v. Steven B. consol. w/

State v. Begaye COA 31,265/32,136 08/11/14No. 34,286 Yedidag v.

Roswell Clinic Corp. COA 31,653 08/11/14No. 34,499 Perez v. N.M. Workforce

Solutions Dept. COA 32,321/32,330 08/13/14No. 34,546 N.M. Dept. Workforce Solutions v.

Garduno COA 32,026 08/13/14No. 34,271 State v. Silvas COA 30,917 08/25/14No. 34,365 Potter v. Pierce COA 31,595 08/25/14No. 34,435 State v. Strauch COA 32,425 08/27/14No. 34,447 Loya v. Gutierrez COA 32,405 08/27/14No. 34,295 Dominguez v. State 12-501 09/24/14No. 34,501 Snow v. Warren Power COA 32,335 10/01/14No. 34,311 State v. Favela COA 32,044 10/27/14No. 34,607 Lucero v.

Northland Insurance COA 32,426 10/29/14No. 34,554 Miller v.

Bank of America COA 31,463 11/10/14No. 34,488 State v. Norberto COA 32,353 11/17/14No. 34,487 State v. Charlie COA 32,504 11/17/14

Petition for Writ of Certiorari Denied:

Date Order FiledNo. 34,971 Moongate Water v. Dona Ana

Mutual Domestic Water COA 34,004 12/03/14No. 34,970 State v. Lara COA 33,688 12/03/14No. 34,969 State v. Munoz COA 33,817 12/03/14No. 34,968 State v. Munoz COA 33,815 12/03/14No. 34,967 State v. Ross COA 32,152 12/03/14No. 34,965 State v. Jimenez COA 33,802 12/03/14No. 34,963 State v. Arthur COA 33,750 12/03/14No. 34,961 State v. Rowden COA 33,772 12/03/14No. 34,922 State v. Bell COA 31,890 12/03/14


OpinionsAs Updated by the Clerk of the New Mexico Court of Appeals

Wendy F. Jones, Chief Clerk New Mexico Court of Appeals PO Box 2008 • Santa Fe, NM 87504-2008 • (505) 827-4925


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

Published Opinions

No. 2nd Jud Dist Bernalillo LR-09-71, STATE v T CARROLL (reverse and remand) 12/01/2014No. 2nd Jud Dist Bernalillo CV-12-2239, AFSCME v ABQ (affirm) 12/02/2014 No. 5th Jud Dist Lea CR-10-431, STATE v D SURRATT (reverse and remand) 12/03/2014No. 9th Jud Dist Curry CR-11-703, STATE v R SCHAUBLIN (affirm) 12/03/2014

Unublished Opinions

No. 11th Jud Dist McKinley CV-11-230, J GUTIERREZ v FIRST CHOICE (affirm) 12/03/2014No. 2nd Jud Dist Bernalillo CR-11-5098, STATE v T THOMPSON (affirm in part, reverse in part) 12/03/2014No. 5th Jud Dist Chaves LR-12-30, STATE v C NORIEGA (affirm) 12/03/2014No. 6th Jud Dist Grant CR-12-61, STATE v L ABEYTA (dismiss) 12/03/2014No. 2nd Jud Dist Bernalillo CV-12-8074, C ORTIZ v NEVADA GENERAL (affirm) 12/03/2014No. 12th Jud Dist Lincoln JR-14-1, STATE v GERARDO A (affirm) 12/03/2014No. 2nd Jud Dist Bernalillo CV-08-11601, BANK OF NY v J KEERAN (affirm) 12/03/2014 No. 2nd Jud Dist Bernalillo JQ-12-25, CYFD v DESION R (affirm) 12/04/2014No. 2nd Jud Dist Bernalillo CR-11-3564. STATE v A HERNANDEZ (affirm) 12/04/2014No. 2nd Jud Dist Bernalillo LR-13-09, STATE v S MONTOYA (affirm) 12/04/2014No. 13th Jud Dist Valencia JQ-13-26, CYFD v ADAM H (affirm) 12/04/2014

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

Clerk’s CertificatesFrom the Clerk of the New Mexico Supreme CourtJoey D. Moya, Chief Clerk New Mexico Supreme Court

PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860


Dated Dec. 1, 2014

Clerk’s Certificate of Address and/or

Telephone Changes

Eric AmesPO Box 195933 San Mateo Blvd. NE, Suite 500 (87108)Albuquerque, NM [email protected]

Roberta Y. BacaOffice of the Superintendent of InsurancePO Box 16891120 Paseo de Peralta (87501)Santa Fe, NM 87504-1689505-476-0539505-476-0479 (fax)[email protected]

Eva K. Blazejewski10050 North 25th Avenue, Suite 205Phoenix, AZ [email protected]

Alice Melissa Bozone2949 Santa Clara Avenue SEAlbuquerque, NM [email protected]

Susan J. CarterWeinstein, Pinson & Riley, PS20 First Plaza NW, Suite 303Albuquerque, NM 87102206-438-1029505-214-5116 (fax)[email protected]

Merrie ChappellPO Box 213334901 McLeod Rd. NE (87109)Albuquerque, NM 87154-1333505-289-1922505-289-1932 (fax)[email protected]

Taina L. Colon28188 Moulton Parkway, Apt. 1918Laguna Niguel, CA [email protected]

Zachary CormierKeleher & McLeod, PAPO Box AA201 Third Street NW, Suite 1200 (87102)Albuquerque, NM [email protected]

Jordan Mick DeHaanLexington Law Firm360 North Cutler DriveNorth Salt Lake, UT 84054801-297-2494801-297-2511 (fax)[email protected]

John Edwin FarrowGallagher, Casados & Mann, PC317 Commercial St. NE, 2nd FloorAlbuquerque, NM 87102505-243-7848505-764-0153 (fax)[email protected]

Elizabeth A. FerrellOffice of the Third Judicial District Attorney845 N. Motel Blvd., 2nd Floor, Suite DLas Cruces, NM 88007575-524-6370575-647-8584 (fax)[email protected]

Josephine FooCapacity Builders, Inc.418 West BroadwayFarmington, NM 87401505-326-4245505-326-1698 (fax)[email protected]

MacDonnell GordonRiley, Shane & Keller, PA3880 Osuna Road NEAlbuquerque, NM 87109505-883-5030505-883-4362 (fax)[email protected]

Steven E. Jones1302 Millar RoadAberdeen, MD [email protected]

Henry C. MaMcKesson Corporation4343 N. Scottsdale Road, Suite 145Scottsdale, AZ [email protected]

Ramona J. MartinezLaw Offices of the Public Defender506 S. Main Street, Suite 700Las Cruces, NM [email protected]

L. Thomas McClung2922 Coral Strip ParkwayGulf Breeze, FL [email protected]

Russell Lance MillerOffice of the Fourth Judicial District Attorney1800 New Mexico AvenueLas Vegas, NM 87701505-425-6746505-426-8947 (fax)[email protected]

Troy James OliverChandler Law Firm613 North Main StreetClovis, NM [email protected]

Elizabeth Ann ShieldsCarson Ryan LLCPO Box 1612400 E. College Blvd., Suite C (88201)Roswell, NM [email protected]

Paul Phillip StrangePO Box 750Eden, UT [email protected]

Sarah L. StricklandLaw Office of Jill V. Johnson VigilPO Box 16244Las Cruces, NM 88004-62441370 Tierra de Mesilla, Ste. 8, Mesilla, NM 88047575-527-5405575-527-1899 (fax)[email protected]

Mariano Andrew TorrezLaw Offices of the Public Defender2395 N. Florida AvenueAlamogordo, NM 88310575-551-7209575-446-4671 (fax)[email protected]

Jacob Daniel VallejosThe Law Office of Lucero and Howard LLC20 First Plaza NW, Suite 515Albuquerque, NM 87102505-225-8778505-288-3473 (fax)[email protected]

Elizabeth Rodke Washburn4701 Willard Avenue, #722Chevy Chase, MD 20815651-343-4660

Tara M. Wood726 E. Michigan Drive, Suite 220Hobbs, NM 88240575-964-8399855-824-9001 (fax)[email protected]

Michael J. AnayaCentral New Mexico Community College525 Buena Vista Drive SEAlbuquerque, NM [email protected]

John Robert BeauvaisJ. Robert Beauvais PAPO Box 2408102 Whitlock StreetRuidoso, NM 88345-2408575-257-6321575-257-7011 (fax)[email protected]




























Clerk’s Certificates

Roberta Alicia BritoPO Box 6845Albuquerque, NM 87197-6845

Brian M. CloseClose Law Firm, PC912 Fifth Street NWAlbuquerque, NM 87102505-796-4878505-214-5366 (fax)[email protected]

Andria L. CooperPO Box 131Wayne, NE [email protected]

Donald R. FenstermacherLos Alamos National Bank6700 Jefferson Street NE, Suite D-1Albuquerque, NM 87109505-449-5112505-449-5191 (fax)[email protected]

Bradley A. Galbraith490 Old Santa Fe Trail, Suite 400Santa Fe, NM [email protected]

Ronald Eugene Owens1900 Avenida Las Campanas NWLos Ranchos, NM 87107

Thomas A. Sandenaw Jr.Sandenaw Law Firm, PCPO Box 13605Las Cruces, NM 88013-3605575-522-7500575-522-5544 (fax)[email protected]

Lauren P. Tiano1901 Queensbridge CourtKeller, TX 76262

Jeffrey F. Van Keulen3006 Shawnee TrailAlamogordo, NM [email protected]

L. Val WhitleyThe Whitley Law Firm121 Sandoval Street, Suite 204Santa Fe, NM 87501505-992-2903505-989-9196 (fax)[email protected]

Michael K. WhitmanThe Potts Law Firm1901 W. 47th Place, #210Westwood, KS 66205816-931-2230816-817-0478 (fax)[email protected]

Hope Mead Wynn1728 Avenida Alturas NEAlbuquerque, NM [email protected]

Megan E. DorseyLaw Offices of the Public Defender301 N. Guadalupe Street, Suite 101Santa Fe, NM [email protected]

Coleen O’LearyLaw Offices of the Public Defender285 Boardman Drive, Suite AGallup, NM 87301505-726-4534505-863-4799 (fax)[email protected]

Jared M. BarliantJared M. Barliant & Associates, PC2904 Rodeo Park Drive East, Bldg. 400Santa Fe, NM 87508505-471-5100505-471-7815 (fax)[email protected]

Megan L. KuhlmannYenson, Allen & Wosick PC4908 Alameda Blvd. NEAlbuquerque, NM 87113505-266-3995505-268-6694 (fax)[email protected]

Lily C. RichardsonResnick & Louis, PC643 Highway 314 N.W.Los Lunas, NM [email protected]

Clerk’s Certificate of Change to

Inactive Status

Effective November 20, 2014:Jonathan Richard Adams417 Riverside Drive, #5FNew York, NY 10025

Thomas H. SchalchUSCIS Nebraska Service CenterPO Box 82521Lincoln, NE 68501-2521

Effective November 20, 2014:Joseph Edward Balsiger1259 Franklin Jay LaneEl Paso, TX 79912

Claude David Convisser6223 Beachway DriveFalls Church, VA 22041

Effective November 24, 2014:Anthony W. White15535 Solana Road SEDeming, NM 88030

Effective November 16, 2014:Suzanne G. LubarCity of AlbuquerquePO Box 1293Albuquerque, NM [email protected]

Effective November 17, 2014:Erin Irene ReedCalifornia Court of Appeal - Second District300 S. Spring Street, North Tower, Floor 2Los Angeles, CA 90013

Clerk’s Certificate of Withdrawal

Effective November 19, 2014:Paula Gillespie Burnett1800 Rosewood NWAlbuquerque, NM 87120

In Memoriam

As of March 2, 2014:David GreenhawP.O. Box 311Odessa, TX 79760

As of October 29, 2014:Ronald Calvin Morgan508 Solano Drive SEAlbuquerque, NM 87108

Clerk’s Certificate of Correction

Kristin GromanGroman Law, LLC643 Highway 314 NWLos Lunas, NM 87031505-865-6005505-565-1544 (fax)[email protected]

Hon. R. Lar ThomasPO Box 488Peralta, NM [email protected]

Clerk’s Certificate of Admission

On November 24, 2014:Perry KlareLaw Offices of the Public Defender505 Marquette Avenue NW, Suite 120Albuquerque, NM 87102505-369-3600505-841-6953 (fax)[email protected]

Clerk’s Certificate of Reinstatement to Active Status

As of November 19, 2014:Steven Robert Maher631 West Morse Blvd., Suite 200Winter Park, FL 32789




















Joey D. Moya, Chief Clerk New Mexico Supreme Court PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860

Recent Rule-Making ActivityAs Updated by the Clerk of the New Mexico Supreme Court


Pending Proposed Rule Changes Open for Comment:

Comment Deadline

For 2014 year-end rule amendments that become effective Dec. 31, 2014, see the Nov. 5, 2014, issue of the Bar Bulletin (Vol. 53, No. 45) or visit the New Mexico Compilation Commission’s website at http://www.nmcompcomm.us/nmrules/NMRuleSets.aspx.

Recently Approved Rule Changes Since Release of 2014 NMRA:

Effective Date

Children’s Court Rules and Forms

10-102 Commencement of action. 08/31/1410-315 Custody hearing. 07/01/1410-317 Notice of change in placement. 08/31/1410-323 Dismissal of a respondent or child;

party dismissal sheet. 08/31/1410-343 Adjudicatory hearing; time limits;

continuances. 07/01/1410-501A Abuse and neglect party information sheet. 08/31/1410-565 Advance notice of change of placement. 08/31/1410-566 Emergency notice of change of placement. 08/31/1410-567 Abuse and neglect party dismissal sheet. 08/31/14

Rules of Appellate Procedure12-206A Expedited appeals from Children’s Court

custody hearings. 07/01/1412-303 Appointment of counsel. 07/01/14

Rules Governing Admission to the Bar15-102 Admission requirements. 06/01/1515-103 Qualifications. 06/01/1515-105 Application fees. 06/01/1515-107 Admission by motion. 06/01/15

Supreme Court General Rules23-109 Chief judges. 04/23/14

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.

http://www.nmcompcomm.us/nmrules/NMRuleSets.aspx

http://www.nmcompcomm.us/nmrules/NMRuleSets.aspx

http://nmsupremecourt.nmcourts.gov

http://www.nmcompcomm.us


Advance Opinions http://www.nmcompcomm.us/

From the New Mexico Supreme Court and Court of Appeals

Certiorari Granted, October 10, 2014, No. 34,855


Opinion Number: 2014-NMCA-103

CAROL RAYOS, a natural parent and next friend of C.H., a minor,Plaintiff-Appellant,

v.STATE OF NEW MEXICO ex rel. NEW MEXICO DEPARTMENT OF CORRECTIONS,

ADULT PROBATION AND PAROLE DIVISION, RILEY LOOMIS, JOHN DOES NOS. I and II, and ELIZABETH QUEENER,

individually and in their official capacities as employees of the New Mexico Department of Corrections, Adult Probation and Parole Division,

Defendants-AppelleesDocket No. 32,911 (filed July 15, 2014)

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTYSARAH M. SINGLETON, District Judge

NANCY G. ENGLISHENGLISH LAW FIRM

Tucumcari, New Mexico

PHILIP B. DAVISAlbuquerque, New Mexico

F. MICHAEL HARTMARTINEZ, HART & THOMPSON, P.C.

Albuquerque, New Mexico

ALICE T. LORENZLORENZ LAW

Albuquerque, New Mexicofor Appellant

MARK D. STANDRIDGEJARMIE & ASSOCIATES

Las Cruces, New Mexico

MARK D. JARMIEMATTHEW D. BULLOCKJARMIE & ASSOCIATES

Albuquerque, New Mexicofor Appellees

Opinion

Linda M. Vanzi, Judge.1 Plaintiff appeals the district court’s grant of summary judgment in favor of Defendants, the New Mexico Department of Corrections, Adult Probation and Parole Division (APPD); probation and parole officers, Riley Loomis and John Does I and II; and probation and parole officer and supervisor, Elizabeth Queener (col-lectively, APPD Defendants). The sole issue presented is whether APPD officers are now considered “law enforcement of-ficers” as that term is defined in the New Mexico Tort Claims Act (the TCA), NMSA 1978, §§ 41-4-1 to -30 (1976, as amended through 2013), for purposes of the TCA’s

waiver of immunity for certain conduct of law enforcement officers. In its order granting APPD Defendants’ motion, the district court stated that it was bound by this Court’s holding in Vigil v. Martinez, 1992-NMCA-033, ¶ 20, 113 N.M. 714, 832 P.2d 405, that probation and parole officers and their supervisors are not “law enforce-ment officers” for the purposes of the TCA and dismissed APPD Defendants from the case. Because there is no sufficient legal or factual basis to depart from our holding in Vigil, we affirm. BACKGROUND2 Plaintiff is the natural parent and next friend of C.H., her minor daughter. Kenneth Mills is a convicted sex offender with a sixteen-year history of violent crimes. Mills was under the supervision

of APPD Defendants from 2004 through 2008, during which time he violated the terms of his probation numerous times by committing new crimes and violating the Sex Offender Registration and Notification Act (SORNA), NMSA 1978, §§ 29-11A-1 to -10 (1995, as amended through 2013), allegedly with little to no consequence. In August 2008, Mills kidnapped C.H. in the middle of the night and repeatedly raped her, leaving C.H. to suffer permanent physical and emotional harm. 3 What Mills did to C.H. should never have happened. In violation of his condi-tions of probation, Mills was able to be near Plaintiff ’s home where he had access to C.H. and where he had the opportunity to kidnap and repeatedly rape her. Plaintiff sued APPD Defendants individually and in their official capacities, alleging that, during the four years leading up to the kidnapping and assault, APPD Defendants failed “to properly monitor and supervise Mills, . . . enforce the conditions of his probation, . . . report his probation viola-tions to the [c]ourt, . . . place him on strict probation, . . . place him on GPS or elec-tronic monitoring, . . . maintain personal contact with him, . . . seek and obtain the revocation of his probation, . . . [and] arrest him or cause him to be arrested,” and that they “knowingly recommend[ed] Mills for an early unsatisfactory discharge, despite and even because of Mills’ history of seri-ous probation violations and his violent criminal history.” Plaintiff also alleged that APPD was liable for the negligence of its employees under the doctrine of respon-deat superior. In addition, Plaintiff sued the Curry County Board of County Com-missioners, the sheriff of Curry County, and other employees of Curry County, individually and in their official capacities, for failing to comply with their duties to investigate, track, report, and register Mills pursuant to SORNA. 4 The district court allowed limited discovery and briefing on the defendants’ claims for immunity under the TCA and deferred the other case deadlines. APPD Defendants subsequently filed a motion for summary judgment, asserting that because they are not “law enforcement officers” under the TCA, they are immune from suit. The district court granted that motion and entered final judgment dis-missing with prejudice all of Plaintiff ’s claims against APPD Defendants. Plaintiff timely appealed.

http://www.nmcompcomm.us/


http://www.nmcompcomm.us/Advance OpinionsDISCUSSIONStandard of Review5 Statutory interpretation is a question of law that we review de novo. Am. Fed’n of State, Cnty. & Mun. Emps., Council 18 v. City of Albuquerque, 2013-NMCA-012, ¶ 6, 293 P.3d 943, cert. quashed, 2013-NM-CERT-008, 309 P.3d 101. “In construing a statute, our charge is to determine and give effect to the Legislature’s intent.” Marbob Energy Corp. v. N.M. Oil Conservation Comm’n, 2009-NMSC-013, ¶ 9, 146 N.M. 24, 206 P.3d 135. We also review de novo the grant of summary judgment. Romero v. Philip Morris Inc., 2010-NMSC-035, ¶ 7, 148 N.M. 713, 242 P.3d 280. Summary judgment is appropriate where “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judg-ment as a matter of law.” Rule 1-056(C) NMRA; Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582.The TCA’s Waiver of Immunity for Law Enforcement Officers6 Our Legislature enacted the TCA in order to provide a mechanism to “com-pensate those injured by the negligence of public employees and to impose duties of reasonable care[,]” while at the same time limiting “governmental liability so that government should not have the duty to do everything that might be done.” Cobos v. Doña Ana Cnty. Hous. Auth., 1998-NMSC-049, ¶ 6, 126 N.M. 418, 970 P.2d 1143 (internal quotation marks and citation omitted). The TCA achieves this purpose by providing immunity from tort liability for governmental entities and public employees acting within the scope of their duties, except as that immunity is waived, as relevant here, by Sections 41-4-5 to -12. See § 41-4-4(A); Armijo v. Dep’t of Health & Env’t, 1989-NMCA-043, ¶ 4, 108 N.M. 616, 775 P.2d 1333. 7 This case focuses on Section 41-4-12 of the TCA, which waives immunity for speci-fied intentional torts, violation of property rights, or deprivation of constitutional rights “caused by law enforcement officers while acting within the scope of their du-ties.” We have previously held that this waiver applies where a “law enforcement officer’s negligence . . . cause[s] a third party to commit one of the specified intentional torts.” Lessen v. City of Albuquerque, 2008-NMCA-085, ¶ 39, 144 N.M. 314, 187 P.3d

179. The parties do not argue, and we need not reach, the question of whether APPD Defendants were acting within the scope of their duties or whether the crimes Mills committed meet the definition of any of the specified intentional torts because we hold that, under Vigil, APPD Defendants are not “law enforcement officers” within the meaning of the TCA. 8 The crux of the issue is the definition of the term “law enforcement officer.” The TCA defines a “law enforcement officer” as

a full-time salaried public em-ployee of a governmental entity, or a certified part-time salaried police officer employed by a gov-ernmental entity, whose principal duties under law are to hold in custody any person accused of a criminal offense, to maintain public order or to make arrests for crimes[.]

Section 41-4-3(D). “Our courts have construed this definition strictly.” Loya v. Gutierrez, 2014-NMCA-028, ¶ 11, 319 P.3d 656, cert. granted, 2014-NMCERT-002, 322 P.3d 1063. Significantly, the statutory provision directs us to determine a public employee’s “principal duties under law.” Section 41-4-3(D) (emphasis added). However, not all duties of public employ-ees are enumerated in a statute or regula-tion. Accordingly, our cases have also considered such sources as departmental job descriptions and affidavits in deter-mining the duties of public employees. See Weinstein v. City of Santa Fe ex rel. Santa Fe Police Dep’t, 1996-NMSC-021, ¶¶ 9-10, 121 N.M. 646, 916 P.2d 1313 (considering statutes enumerating duties of municipal police officers, county sheriffs, and law enforcement officers); Anchondo v. Corr. Dep’t, 1983-NMSC-051, ¶¶ 4-8, 100 N.M. 108, 666 P.2d 1255 (looking to the princi-pal duties of the secretary of corrections and the warden of a county detention cen-ter as described by statute to conclude they were not law enforcement officers under the TCA); Baptiste v. City of Las Cruces, 1993-NMCA-017, ¶¶ 2, 4, 115 N.M. 178, 848 P.2d 1105 (holding that the written job description alone was insufficient to estab-lish that an animal control officer is a law enforcement officer under the TCA); Vigil, 1992-NMCA-033, ¶¶ 11-15 (considering the Probation and Parole Act, written job

description, and employee’s affidavit in the context of the definition of “law enforce-ment officer”). 9 The immunity waiver for “law en-forcement officers” requires that “the de-fendants’ principal duties, those duties to which they devote a majority of their time, be of a law enforcement nature.” Weinstein, 1996-NMSC-021, ¶¶ 8, 12. Thus, we must determine the duties upon which the em-ployee spends the majority of his or her time (principal duties) and consider the character of those principal duties “against the admittedly amorphous standard of the duties and activities traditionally performed by law enforcement officers.” Coyazo v. State, 1995-NMCA-056, ¶ 13, 120 N.M. 47, 897 P.2d 234; see Weinstein, 1996-NMSC-021, ¶¶ 8, 12. There is no “exhaustive list of activities that fit within the law enforcement mold.” Coyazo, 1995-NMCA-056, ¶ 18. Rather, our determina-tion is “informed by a practical, functional approach as to what law enforcement entails today.” Id. Public employees whose principal duties under law fall within any of the categories enumerated in Section 41-4-3(D) are “law enforcement officers” for the purposes of the TCA. Limacher v. Spivey, 2008-NMCA-163, ¶ 9, 145 N.M. 344, 198 P.3d 370. APPD Defendants Are Not Law Enforcement Officers10 In this case, the district court stated that it was bound by this Court’s deci-sion in Vigil and held that the Defendant probation and parole officers and their supervisor were not law enforcement of-fices for whom immunity had been waived under the TCA.1 See 1992-NMCA-033, ¶ 20. APPD Defendants rely on Vigil as well. We review Vigil in some detail. In that case, while he was on supervised probation, a probationer brutally mur-dered someone by slitting his throat. Id. ¶¶ 1-2. The personal representative of the victim’s estate sued the probationer’s probation officer, her supervisor, and the state director of probation, alleging gross negligence and callous indifference to the supervision of the probationer. Id. The district court granted the defendants’ motion to dismiss, which in relevant part asserted that the defendants were immune from suit pursuant to the TCA. Id. ¶ 1. This Court affirmed, reviewing the motion as one for summary judgment because the

1 We note that the parties do not distinguish between the duties of probation and parole officers and probation and parole super-visors. Vigil also appears to make no distinction, although its holding encompasses both. Accordingly, we view the principal duties of probation and parole offices and supervisors synonymously for purposes of our analysis in this Opinion.



http://www.nmcompcomm.us/Advance Opinionsdefendants had attached and relied largely on an uncontested affidavit from one of the defendants regarding his principal duties and responsibilities and a written job description setting forth the duties of a probation and parole officer and super-visor. Id. ¶¶ 14-15. The principal duties of probation and parole officers and their supervisors are not specifically enumer-ated by statute, so the Vigil Court turned to the Probation and Parole Act (the Act) in order to ascertain the chief function of probation and parole officers. Id. ¶ 18. In relevant part, the Act provides that persons convicted of crimes “ ‘shall be dealt with in the community by a uniformly organized system of constructive rehabilitation under probation supervision instead of in an institution, or under parole supervision when a period of institutional treatment is deemed essential in the light of the needs of public safety and their own welfare.’ ” Id. (emphasis added) (quoting NMSA 1978, § 31-21-4 (1963)). Thus, this Court determined the chief function of proba-tion and parole officers under the Act is rehabilitation. Vigil, 1992-NMCA-033, ¶ 18. In addition, Vigil considered the state’s job description for probation and parole officers and their supervisors and the employee affidavit and analyzed those duties in light of the law concerning the traditional functions of law enforcement officers. Id. ¶¶ 12-20. Based on its review of the law and proffered evidence, this Court decided that (1) “making arrests for crime,” (2) “holding in custody persons accused of criminal offenses,” and (3) “maintaining public order” do not constitute duties to which probation and parole officers are to devote a majority of their time. Id. ¶¶ 16, 20.11 In the more than twenty years since Vigil was decided, the New Mexico Legislature has not amended the statute to include probation and parole officers within the definition of law enforcement officers. Moreover, every subsequent state and federal decision—both published and unpublished—on the “law enforcement officer” waiver has followed Vigil, albeit with little meaningful analysis or none at all. See, e.g., Limacher, 2008-NMCA-163, ¶ 17; Coyazo, 1995-NMCA-056, ¶ 17; Trask v. Franco, 446 F.3d 1036, 1048 (10th Cir. 2006); Ricks v. N.M. Adult Prob. & Parole Dep’t, No. CV-11-608, slip op. at 32-33 (D.N.M. Aug. 9, 2012); Wells v. N.M. Adult Prob. & Parole, No. CV-09-150, slip op. at 3 (D.N.M. Feb. 5, 2010); Kenney v. New Mex-ico, No. CV-07-0422, slip op. at 8 (D.N.M.

Oct. 2, 2007). Against this backdrop, there simply has been no change in the law to warrant a departure from Vigil. See Trujillo v. City of Albuquerque, 1998-NMSC-031, ¶ 34, 125 N.M. 721, 965 P.2d 305 (noting, in relevant part, that before overturning precedent, we must consider “whether the principles of law have developed to such an extent as to leave the old rule no more than a remnant of abandoned doctrine” and “whether the facts have changed in the interval from the old rule to reconsid-eration so as to have robbed the old rule of justification” (internal quotation marks and citation omitted)). Thus, our sole task here is to determine whether the facts have so changed that the principal duties of probation and parole officers now fall within one of the three relevant categories of principal duties of law enforcement of-ficers enumerated in Section 41-4-3(D) of the TCA. 12 As to the first category, “making arrests for crime,” Plaintiff points to no change in the law and admits that probation and parole officers do not devote the major-ity of their time to making arrests. See Vigil, 1992-NMCA-033, ¶ 19. Consequently, there is no basis for concluding that mak-ing arrests for crimes is the principal duty of probation and parole officers. See Dunn v. State ex rel. Taxation & Revenue Dep’t, 1993-NMCA-059, ¶ 11, 116 N.M. 1, 859 P.2d 469 (holding that the director of the New Mexico Motor Vehicle Department, who has statutory authority to make arrests, was not a law enforcement officer because “the vast majority of [his] time and effort are involved in administrative matters” (internal quotation marks omitted)). 13 As to the second category, Plaintiff contends that “hold[ing] persons accused of crimes in custody” is a principal duty of probation and parole officers because these officers can “limit where and with whom probationers and parolees can live, work, socialize[,] and travel, have the authority to search their persons and premises, and do, in fact, take physical custody of pro-bationers and parolees who are suspected of committing new crimes or otherwise violating their parole or probation.” We rejected a similar argument in Vigil and pointed out that probation and parole of-ficers supervise probationers and parolees and that they “do not hold their clients in custody within the traditional meaning of the term as applied to law enforcement officers.” 1992-NMCA-033, ¶ 17. We also noted that holding persons in custody is a minor incident of probation and parole

officers’ jobs and that probationers and pa-rolees are not persons “accused” of crimes because they have already been convicted. Id. 14 Plaintiff asserts that Vigil’s inter-pretation of the words “custody” and “accused” is unduly narrow. However, we see no legal basis for reinterpreting those terms more broadly. Indeed, we have limited the definition of law enforcement officers in this category to detention center employees whose principal duties under law are to hold in custody persons accused of a crime while awaiting trial. See, e.g., Davis v. Bd. of Cnty. Comm’rs of Doña Ana Cnty., 1999-NMCA-110, ¶¶ 35, 39, 127 N.M. 785, 987 P.2d 1172 (holding that the director, captain, and assistant director of a detention center are “law enforcement officers”); Abalos v. Bernalillo Cnty. Dist. Atty’s Office, 1987-NMCA-026, ¶¶ 26-29, 105 N.M. 554, 734 P.2d 794 (same). And, while Plaintiff cites some evidence that probation and parole officers are autho-rized and sometimes required to arrest and hold in physical custody probationers and parolees under their supervision who are “accused” of committing new crimes, that evidence does not establish that these are duties to which probation and parole officers now dedicate a majority of their time, as required for the “principal duty” determination.15 This leaves the “maintaining public order” category, as to which Plaintiff makes several arguments. First, in an apparent effort to circumvent Vigil’s conclusion that the principal duty of probation and parole officers is rehabilitation, not maintain-ing public order, see 1992-NMCA-033, ¶ 18, Plaintiff contends that rehabilitation should be considered a traditional law enforcement duty because it is, in fact, a means of preventing crime, preserving public safety, and maintaining public or-der. Vigil addressed this point, explaining that, “[i]nsofar as probation and parole officers maintain public order by trying to rehabilitate their clients, they are not maintaining public order in the same sense [as] police officers, sheriff ’s deputies, and other traditional law enforcement officers” and that, “[a]lthough one would hope that the efforts of probation and parole officers would improve public order by helping probationers and parolees to become good citizens, the same could be said of the ef-forts of those employed in education and social services.” Id.16 Plaintiff argues that it does not matter how probation and parole officers



http://www.nmcompcomm.us/Advance Opinionspursue crime prevention and maintaining public order because, like police officers, their primary mission is protecting public safety and the TCA’s purpose is to impose liability on public employees whenever public safety is implicated. We are not persuaded by Plaintiff ’s argument. Since Vigil, we have consistently reaffirmed that, to fall within the “maintain[ing] public order” category, a public employee’s prin-cipal duties must be duties traditionally performed by law enforcement officers that directly impact public order. See Dunn v. McFeeley, 1999-NMCA-084, ¶ 25, 127 N.M. 513, 984 P.2d 760 (“In in-terpreting the [TCA] our appellate courts have repeatedly found that a connection to law enforcement activity, even being a member of a law-enforcement team, is insufficient by itself to make one a law en-forcement officer; the person’s duties must directly impact public order.” (emphasis added)); Limacher, 2008-NMCA-163, ¶ 23 (reiterating that “for an employee to fall within the exception for maintaining public order, that person’s duties must be traditional law enforcement duties that directly impact public order” (emphasis added)); Baptiste, 1993-NMCA-017, ¶ 9 (“[I]nsofar as a duty of [a public employee] involves maintaining public order, is the duty one traditionally performed by law enforcement officers? If the duty [of a public employee] is not a traditional duty of law enforcement officers, it does not come within the meaning of ‘maintaining public order’ in the statutory definition of ‘law enforcement officer.’ ”). 17 Thus, we can only conclude that rehabilitation falls within the category of “maintaining public order” if it is now a duty traditionally performed by law enforcement that directly impacts public order. See Limacher, 2008-NMCA-163, ¶ 23. And we have no basis for doing so. While Plaintiff asserts that police officers, sheriff ’s deputies, jailers, and other public employees recognized as “law enforce-ment officers” under the TCA engage in rehabilitative tasks, such as counseling, she proffers no evidence on the point, and the argument fails. See Muse v. Muse, 2009-NMCA-003, ¶ 51, 145 N.M. 451, 200 P.3d 104 (“[A]rguments of counsel are not evidence.”).18 Plaintiff next contends that proba-tion and parole officers are peace officers with certain powers and that they engage in activities similar to those of traditional law enforcement officers. In support of this argument, she cites a statute that

gives corrections officers, including pro-bation and parole officers, certain powers of peace officers and other statutes that grant certain powers and impose certain duties on peace officers. See NMSA 1978, § 33-1-10(A), (C) (1987) (giving correc-tions employees, including probation and parole officers performing certain duties, powers of peace officers); NMSA 1978, § 30-1-12(C) (1963) (defining “peace offi-cer” for purposes of the Criminal Code); NMSA 1978, § 29-1-1 (1979) (requiring peace officers to investigate any violations of criminal law of which they are aware); NMSA 1978, § 30-7-2(A)(3) (2001) (ex-empting certified peace officers from the crime of unlawful carrying of a firearm). Vigil specifically considered and rejected the contention that Section 33-1-10, which gives probation and parole officers certain powers of peace officers, establishes that a probation and parole officer is a “law enforcement officer.” 1992-NMCA-033, ¶¶ 13, 17-19. That statute has not since been amended, and the other statutes cited by Plaintiff provide no basis for a conclusion different from that reached in Vigil. 19 Significantly, rehabilitation remains the principal duty of probation and parole officers under law. Plaintiff does not argue otherwise, nor could she. The Legislature has not amended the provision of the Act upon which Vigil relied, stating that probationers and parolees “shall be dealt with in the community by a uniformly organized system of constructive rehabili-tation” under probation or parole supervi-sion. Section 31-21-4. And our Supreme Court, although it has done so in different contexts, has continued to recognize reha-bilitation as the primary goal of probation and parole. See, e.g., State v. Lopez, 2007-NMSC-011, ¶ 8, 141 N.M. 293, 154 P.3d 668 (“The Legislature has granted district courts the power to revoke probation when a probation condition is violated because rehabilitation, which is the primary goal, is not being achieved.”); State v. Rivera, 2004-NMSC-001, ¶ 24, 134 N.M. 768, 82 P.3d 939 (“The primary goal of probation, which is defendant rehabilitation, may be defeated by delaying the commencement of a defendant’s probationary sentence pending appeal.”).20 We are also not persuaded by Plain-tiff ’s argument that probation and parole officers have other duties, such as monitor-ing, investigating, detaining, searching, and holding in custody offenders not abiding by the conditions of their parole or probation, arresting violators, and re-

straining and holding in custody persons who attempt to interfere, all of which constitute traditional law enforcement ac-tivities. She cites evidence of an overlap in the training of sheriff ’s deputies and pro-bation officers, including making arrests and use of weapons, force, and defensive tactics; certain physical requirements for probation and parole officers, including the ability to use restraints, mace, and custody control techniques; that probation and parole officers carry less-than-deadly weapons; and that probation and parole of-ficers are now authorized to carry firearms but were not so authorized when Vigil was decided. She also offers evidence that New Mexico Corrections Department policies and procedures deal extensively with the arrest power of probation and parole of-ficers and their collaboration with other peace and law enforcement officers to make arrests, that probation and parole officers self-identify as peace officers, that they can or must arrest or cause to be ar-rested probationers or parolees suspected of engaging in criminal activity, and that they are sometimes responsible for holding those persons in custody. 21 At most, this information suggests that probation and parole officers have certain responsibilities and engage in certain activities that may fall within the category of “maintaining public order.” See Vigil, 1992-NMCA-033, ¶ 18. But the only thing Plaintiff cites as having actually changed since Vigil is that probation and parole officers are now authorized—al-though not required—to carry firearms in the field, and this does not establish that the principal duty of probation and parole officers has changed from rehabilitation, or that these officers now dedicate a majority of their time to performing traditional law enforcement duties that directly impact public order. See Limacher, 2008-NMCA-163, ¶ 12 (observing that our case law “clearly distinguish[es] powers from the duty to use them”).22 We also reject Plaintiff ’s assertion that probation and parole officers, who specifically supervise dangerous, repeat sex offenders are law enforcement officers because their “activities would appear to be entirely driven by the goal of maintaining public safety and order, and [are] indis-tinguishable from traditional law enforce-ment activities.” Here, Plaintiff cites the post-Vigil enactment of SORNA, which is based, in part, on the Legislature’s finding that “sex offenders pose a significant risk of recidivism[.]” Section 29-11A-2(A)(1).



http://www.nmcompcomm.us/Advance OpinionsSORNA “assist[s] law enforcement agen-cies’ efforts to protect their communities” by creating registration requirements and public access to information regarding certain registered sex offenders. Section 29-11A-2(B). But nothing in SORNA mentions probation and parole officers; indeed, SORNA “places the responsibility of gathering information and enforcing the registration requirements on county sheriffs.” State v. Burke, 2008-NMSC-052, ¶ 1, 144 N.M. 772, 192 P.3d 767; see § 29-11A-2(B)(1), (2). Nor does Plaintiff cite any APPD policy or procedure, or anything else, that imposes SORNA duties on probation and parole officers. 23 We are aware that recent amend-ments to certain statutes impose more stringent requirements for the length and terms and conditions of probation and pa-role specifically for sex offenders and that, as a result, probation and parole officers are tasked with supervising sex offenders for longer periods of time and with additional oversight requirements as compared to other offenders. Compare NMSA 1978, § 31-21-10(D) (2009), with NMSA 1978, § 31-21-10.1 (2007), and NMSA 1978, § 31-20-5.2 (2003).2 However, nothing in the summary judgment record distinguishes

between the principal duties of probation and parole officers who supervise sex of-fenders and those who supervise other kinds of offenders. 24 Finally, much of Plaintiff ’s argu-ment rests on her assertion that Vigil was wrongly decided because it was based on an overly narrow interpretation of the TCA’s waiver of immunity for “law enforcement officers” and an incomplete record. We think otherwise. The case law is clear that the law enforcement waiver is strictly construed. Loya, 2014-NMCA-028, ¶ 11. Moreover, Vigil was decided on summary judgment, based on evidence the defendants “submitted to the district court three-and-a-half months before the hearing on the motion,” and although the plaintiff had ample time to contest that evidence or provide additional evidence, she did not do so. 1992-NMCA-033, ¶ 14.25 We recognize that the duties of law enforcement officers are subject to change in a changing world and that the analysis of the term “law enforcement officer” under the TCA must account for such changes. See Coyazo, 1995-NMCA-056, ¶ 18. It may well be that changing circumstances, such as prison overcrowding and increased use of probation and parole as alternatives to

incarceration,3 the changing demographic of the probation and parole population,4 and our Legislature’s finding that sex of-fenders have high rates of recidivism have or will have a significant impact on the principal duties of probation and parole officers. As things stand today, however, we have no basis in law or fact sufficient to depart from Vigil.26 The events in this case are tragic, and Mills’ alleged conduct was a terrible crime. Although this Court is sympathetic to Plaintiff ’s plight, based on this record and in light of our holding in Vigil, we must hold that the district court did not err when it ruled that APPD Defendants are not law enforcement officers under Section 41-4-3(D) and that, therefore, the waiver of immunity in Section 41-4-12 does not apply to them.CONCLUSION27 We affirm the judgment of the dis-trict court. 28 IT IS SO ORDERED.

LINDA M. VANZI, Judge

WE CONCUR:RODERICK T. KENNEDY, Chief JudgeJONATHAN B. SUTIN, Judge

2 For instance, rather than the two-year period of supervised parole that persons generally convicted of first, second, or third degree felonies must serve, § 31-21-10(D), sex offenders must serve a minimum of five years, and up to the duration of the sex offender’s life, § 31-21-10.1(A). Similarly, sex offenders must serve a minimum of five years and a maximum of twenty years of probation. Section 31-20-5.2. The parole board is also tasked with additional oversight requirements for sex offenders. See § 31-21-10.1(B)-(F). And the board must “require electronic real-time monitoring of every sex offender released on parole for the entire time the sex offender is on parole[,]” which must “give continuous information on the sex offender’s whereabouts and enable law enforcement and the cor-rections department to determine the real-time position of a sex offender to a high level of accuracy.” Section 31-21-10.1(E). 3 Prison “overcrowding has caused a greater reliance on the use of probation as an alternative to imprisonment.” Shawn E. Small and Sam Torres, Arming Probation Officers: Enhancing Public Confidence and Officer Safety, 65 Fed. Prob. 24, at 25 (2001). According to the Bureau of Justice Statistics, just over three million adults were under state or federal probation at the end of 1995, represent-ing an almost 300 percent increase over the prior ten years. Joan Petersilia, Probation in the United States Part I, Perspectives, at 30 (1998). By the end of 2008, that number had grown to almost 4.3 million. See Lauren E. Glaze and Thomas P. Bonczar, Bureau of Justice Statistics Bulletin: Probation and Parole in the United States, 2008, at 1 (December 2009). 4 “Since the 1980s, the demographic make-up of the probation population has changed markedly[,]” and “more individuals are being placed on probation for a wider range of criminal offenses.” Small and Torres, supra, at 25. Consequently, “probation officers are increasingly supervising offenders who are more violent and dangerous.” Id. For instance, in 2008, over half of the probation population had been convicted for felonies, as opposed to misdemeanors. See Glaze and Bonczar, supra, at 31.



http://www.nmcompcomm.us/Advance Opinions



CATHY TREI, Plaintiff-Appellant,

v.AMTX HOTEL CORPORATION, d/b/a HOLIDAY INN,

Defendant-AppelleeDocket No. 33,048 (filed June 24, 2014)

APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTYWILLIAM A. SANCHEZ, District Judge

AMAVALISE F. JARAMILLOTome, New Mexico

for Appellant

RHETT J. HUBBARDPETERSON FARRIS BYRD & PARKER

Amarillo, Texasfor Appellee

Opinion

Jonathan B. Sutin, Judge1 Plaintiff Cathy Trei appeals the district court’s grant of Defendant AMTX Hotel Corporation’s motion to dismiss for lack of personal jurisdiction. Plaintiff argues that the district court erred in finding insufficient contacts with New Mexico to establish jurisdiction. She also argues that even if the contacts were insufficient, De-fendant waived its jurisdictional defense by engaging in non-jurisdictional discovery. We conclude that the out-of-state franchi-sor’s national advertising does not provide a basis to establish personal jurisdiction in New Mexico over the nonresident franchi-see Defendant in this case. Additionally, we conclude that Defendant did not waive its jurisdictional defense. We therefore affirm the district court’s dismissal for lack of personal jurisdiction.BACKGROUND2 Plaintiff is a resident of New Mexico. Defendant is a New York corporation that owns and operates a hotel in Amarillo, Texas. Defendant’s hotel does business as a “Holiday Inn,” pursuant to its franchise agreement with Intercontinental Hotels Group (IHG), which owns the “Holiday Inn” brand.1

3 In March 2012, Plaintiff was a guest at Defendant’s hotel in Amarillo, Texas. She was injured while using equipment in the

hotel’s exercise facility. Plaintiff sued in Valencia County, New Mexico, seeking damages for personal injuries at the hotel. In response, Defendant filed a motion to dismiss based on lack of jurisdiction, along with an answer to the complaint. Defendant also sent Plaintiff a set of in-terrogatories, a request for production of documents, and requested authorizations to obtain various records relating to Plain-tiff.4 Following a hearing on Defendant’s motion to dismiss, the district court de-termined that there were not sufficient contacts between New Mexico and Defen-dant to establish jurisdiction and entered an order dismissing the case on that basis. This appeal followed.DISCUSSION5 “The determination whether a district court has personal jurisdiction over a non-resident defendant is a question of law that we review de novo.” Sproul v. Rob & Char-lies, Inc., 2013-NMCA-072, ¶ 6, 304 P.3d 18. Where the district court bases its ruling on the parties’ pleadings and affidavits, we apply a standard of review mirroring that of our standard governing appeals from summary judgment. See Sublett v. Wallin, 2004-NMCA-089, ¶ 11, 136 N.M. 102, 94 P.3d 845. “We construe the pleadings and affidavits in the light most favorable to the complainant, and the complainant need only make a prima facie showing that personal jurisdiction exists.” Id.

6 “[W]e consider the long-arm statute as being coextensive with the requirements of due process and undertake a single search for the outer limits of what due process permits.” M.R. v. SereniCare Funeral Home, L.L.C., 2013-NMCA-022, ¶ 8, 296 P.3d 492 (internal quotation marks and citation omitted). “Due process requires that an out-of-state defendant have ‘minimum contacts’ with the forum state ‘such that the maintenance of the suit does not of-fend traditional notions of fair play and substantial justice.’ ” Alto Eldorado P’ship v. Amrep Corp., 2005-NMCA-131, ¶ 31, 138 N.M. 607, 124 P.3d 585 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). Personal jurisdiction can be either general (all-purpose) or specific (case-linked). Sproul, 2013-NMCA-072, ¶ 9. Because the jurisdiction asserted in this case is specific, we must determine whether Defendant purposely established contact with New Mexico and, if so, whether Plaintiff ’s cause of action arose out of those contacts with New Mexico. See Zavala v. El Paso Cnty. Hosp. Dist., 2007-NMCA-149, ¶ 12, 143 N.M. 36, 172 P.3d 173.Plaintiff ’s Agency Theory7 Plaintiff can point to no direct contact between New Mexico and Defendant. De-fendant has no facilities, hotels, offices, or employees in New Mexico, has no agent in New Mexico, does not advertise in New Mexico, and does not conduct any business in New Mexico. In short, Defendant has no presence whatsoever in New Mexico. Plaintiff argues that Defendant’s purpose-ful contact with New Mexico stems from “the advertising and marketing activities of Holiday Inn in New Mexico, which can be imputed or attributed to [Defendant.]” Plaintiff relies on “[IHG’s national] adver-tising . . . on television and radio,” which she alleges she saw and heard prior to her stay at Defendant’s hotel. She also points out that she was a member of IHG’s Prior-ity Club at the time of her injury, which is also advertised nationally. Plaintiff asks this Court to impute IHG’s advertising to De-fendant in order to demonstrate contacts between Defendant and New Mexico. She argues that IHG’s advertisements should be attributed to Defendant “through theories of agency or apparent agency.” In her re-ply brief, Plaintiff states that her position is “premised on [Defendant’s] use of the

1 There is nothing in the record indicating IHG’s state of incorporation. Neither party alleges that New Mexico is the state of incorporation. We analyze the jurisdictional issue accordingly.



http://www.nmcompcomm.us/Advance OpinionsHoliday Inn name, and how it benefits from that advertisement and promotional activities conducted via its agent [IHG].” We reject Plaintiff ’s imputation and at-tribution contacts theories.8 “The existence of a franchisor-fran-chisee relationship alone is insufficient to create a principal-agent relationship.” Campos Enters., Inc. v. Edwin K. Williams & Co., 1998-NMCA-131, ¶ 18, 125 N.M. 691, 964 P.2d 855; see also Sublett, 2004-NMCA-089, ¶¶ 14-22, 28 (declining to find an agency relationship between a nonresident franchisor defendant and a New Mexico franchisee for the purpose of establishing jurisdiction over the franchisor, and emphasizing that “it is a defendant’s activities which must provide the basis for personal jurisdiction, not the acts of other defendants or third parties” (alterations, internal quotation marks, and citation omitted)); Alto Eldorado P’ship, 2005-NMCA-131, ¶ 32 (“[T]he mere relationship of [a] parent corporation and subsidiary corporation is not in itself a sufficient basis for subjecting both to the jurisdiction of the forum state, where one is a nonresident and is not otherwise present or doing business in the forum state. When speaking of jurisdiction, this rule is only common sense, since personal jurisdiction is precisely that: personal.” (internal quotation marks and citation omitted)).9 These cases involve attempts to assert jurisdiction over a nonresident defendant based on the contacts of a resident franchi-see or subsidiary. In the case now before us, Plaintiff is attempting to use alleged New Mexico contacts of a nonresident franchisor to sustain jurisdiction over a nonresident franchisee. Although not on point, Campos, Sublett, and Alto are in-structive. We examine whether one party exerted control over the other to the extent that one party’s contacts with New Mexico can be imputed to the other. We will not impute the alleged contacts of nonresident franchisor IHG to nonresident franchisee Defendant unless Plaintiff has proved sufficient facts to demonstrate that De-fendant, the party over which Plaintiff seeks jurisdiction, has exerted some level of control over IHG, the party that has the alleged contacts with New Mexico through its national advertising. See Coleman v. Chen, 712 F. Supp. 117, 122 (S.D. Ohio 1988) (addressing a plaintiff ’s attempt to impute Holiday Inn’s national advertising to its franchisee for the purpose of estab-lishing jurisdiction and rejecting the argu-

ment because “[t]here [was] no evidence that [the d]efendants [(the franchisee)] control[led] the time, place, or manner of [the d]efendant Holiday Inns’ solicitation” and, therefore, “no jurisdiction [could] be based upon the franchisor’s being an agent of the franchisee”).10 Asserting that IHG has contacts in New Mexico via national advertisements, Plaintiff asks this Court to impute those alleged contacts to Defendant through a theory of agency. In other words, Plaintiff argues that IHG acted as Defendant’s agent with respect to IHG’s advertisements. The argument fails because no evidence exists that Defendant exerted any control over IHG in any respect, much less in regard to IHG’s national advertising program. Further, without any facts about the rela-tionship, all of Plaintiff ’s assertions about an agency relationship are speculative and hollow. We, therefore, decline to impute IHG’s alleged contacts with New Mexico to Defendant.11 Plaintiff ’s claim also fails because national advertisements alone by a non-resident defendant cannot support per-sonal jurisdiction over that nonresident defendant. See Giangola v. Walt Disney World Co., 753 F. Supp. 148, 155-56 (D.N.J. 1990) (concluding that advertising to the general public on television and in newspapers cannot constitute minimum contacts necessary to satisfy due process); Jacobs v. Walt Disney World, Co., 707 A.2d 477, 485 (N.J. Super. Ct. App. Div. 1998) (indicating that advertisements, national in scope, for the purpose of informing the general public and not designed to solicit business from a specific geographic area should not form the basis for jurisdiction). In relation to advertisements to the general public and national in design, the court in Giangola insightfully concluded:

In an age of modern advertising and national media publications and markets, [the] plaintiffs’ ar-gument that such conduct would make a defendant amenable to suit wherever the advertisements were aired would substantially undermine the law of personal ju-risdiction. Courts generally have refused to adopt such a standard and embark on such a course.

753 F. Supp. at 156. Invoking personal jurisdiction when based on national ad-vertisements directed solely to the general public, as in the present case, does not pass the fairness and reasonable tests for jurisdiction. See Roberts v. Piper Aircraft

Corp., 1983-NMCA-110, ¶ 24, 100 N.M. 363, 670 P.2d 974 (indicating that whether personal jurisdiction exists is a question of fairness and reasonableness).12 Plaintiff ’s reliance on Roberts is of no benefit to her. Roberts does not support Plaintiff ’s agency and imputation theory either factually or legally. In Roberts, the injury at issue occurred in New Mexico, id. ¶¶ 2-4, and the advertisements at is-sue, which came directly from one of the nonresident defendants, specifically directed customers in New Mexico to its business through national trade publica-tions that were circulated in New Mexico. Id. ¶¶ 21-22. Here, the circumstances differ significantly. Plaintiff ’s injury occurred in Texas at the nonresident franchisee Defendant’s hotel, and the purely national advertising came from a non-party, non-resident franchsior. No evidence exists that Defendant had any control over IHG’s advertisements. No evidence exists that IHG’s advertisements related specifically to Defendant’s Amarillo hotel, or to the Texas panhandle area, or directed customers to Defendant’s hotel.13 Nor does Cronin v. Sierra Medical Center, on which Plaintiff also relies, sup-port Plaintiff ’s arguments. 2000-NMCA-082, 129 N.M. 521, 10 P.3d 845. The nonresident defendant in Cronin was a hospital that “intentionally, purposefully, and persistently solicit[ed] the business of New Mexico customers.” Id. ¶ 22. Specifi-cally, “[i]t placed advertisements in several New Mexico telephone directories, pro-duced television commercials that could be and were viewed by potential customers in New Mexico, and previously performed health care services for other New Mexico customers.” Id. Like in Roberts, and unlike here, the advertisements at issue in Cronin came directly from the nonresident defen-dant and specifically directed customers to its business. See id. Plaintiff ’s out-of-state authorities are equally distinguishable and inapposite, and we see no reason to discuss them.The Jurisdictional Defense14 Plaintiff argues that Defendant waived its jurisdictional defense by pro-pounding discovery and seeking certain relief in its answer. Defendant served Plaintiff with a set of interrogatories, a request for production of documents, and requested authorizations to obtain certain records about Plaintiff. One day prior, Defendant filed its motion to dismiss for lack of personal jurisdiction. At the same time, Defendant also filed an answer to



http://www.nmcompcomm.us/Advance OpinionsPlaintiff ’s complaint in which Defendant requested that it “be discharged from all liability and recover its costs[.]”15 “The defense of lack of personal jurisdiction is subject to waiver when not properly asserted.” Stetz v. Skaggs Drug Ctrs., Inc., 1992-NMCA-104, ¶ 18, 114 N.M. 465, 840 P.2d 612. Typically, a waiver occurs when a defendant fails to raise the defense in a responsive pleading or a Rule 1-012 NMRA motion. Defendant raised the defense in a motion to dismiss, along with its answer to Plaintiff ’s complaint, a procedure permitted in Rule 1-012(B). Id. (“No defense or objection is waived by be-ing joined with one or more other defenses or objections in a responsive pleading or motion.”). However, the defense may be waived, even if a defendant has preserved the defense in an answer, if the defendant substantially participates in the litigation without actively pursuing its jurisdictional defense. See 5C Charles Alan Wright et al., Federal Practice and Procedure § 1391 (3d ed.) (“[A] party can be held to have waived a defense listed in [Federal] Rule 12(h)(1) through conduct, such as extensive participation in the discovery process or other aspects of the litigation of the case even if the literal requirements of [the rule] have been met[.]”).

16 We have addressed waiver in this context on at least two occasions. In Wil-liams v. Arcoa International, Inc., 1974-NMCA-037, ¶¶ 11-19, 86 N.M. 288, 523 P.2d 23, this Court held that the defendant waived its personal jurisdiction defense when it invoked the jurisdiction of the district court by seeking permissive, af-firmative relief in the form of a third-party complaint. In Capco Acquisub, Inc. v. Greka Energy Corp., 2008-NMCA-153, ¶ 32, 145 N.M. 328, 198 P.3d 354, this Court con-cluded that a defendant did not waive its defense when it filed an answer, a motion to dismiss, a motion for summary judg-ment, and participated in certain aspects of the pretrial process because the conduct was defensive in nature. In other words, the defendant did not seek affirmative relief. Id.17 We reject Plaintiff ’s claim that Defendant waived its jurisdictional de-fense by seeking affirmative relief from the district court. A party is permitted under Rule 1-026 NMRA to propound discovery upon an opposing party once an action has been instituted. Cf. Sanchez v. Church of Scientology of Orange Cnty., 1993-NMSC-034, ¶ 17, 115 N.M. 660, 857 P.2d 771 (explaining that when challenging personal jurisdiction, the opportunity for

discovery exists from the inception of a case). The relief Plaintiff characterizes as “affirmative” was requested in Defendant’s answer, which was filed simultaneously with its motion to dismiss. Plaintiff points out that Defendant’s requests “were not limited to jurisdictional discovery[.]” We decline to penalize Defendant for request-ing information that would be relevant to the subject matter of the action awaiting the district court’s ruling on Defendant’s early filed motion to dismiss for lack of jurisdiction. An answer to a complaint is defensive in nature, and we have previously rejected an argument similar to that of Plaintiff. See Capco Acquisub, Inc., 2008-NMCA-153, ¶¶ 7-8, 31-32.CONCLUSION18 New Mexico does not have personal jurisdiction over Defendant in this case, and Defendant did not waive its jurisdic-tional defense. Accordingly, we affirm the district court’s grant of Defendant’s motion to dismiss for lack of personal jurisdiction.19 IT IS SO ORDERED.

JONATHAN B. SUTIN, Judge

WE CONCUR:RODERICK T. KENNEDY, Chief JudgeMICHAEL D. BUSTAMANTE, Judge






S. LOUIS LITTLE, Plaintiff-Appellant,

v.PAULETTE JACOBS,

Defendant, and

THOMAS R. BAIGAS, Defendant-Appellee

Docket No. 33,215 (filed July 1, 2014)

APPEAL FROM THE DISTRICT COURT OF TAOS COUNTYJEFF F. MCELROY, District Judge

SAMUEL M. HERRERATHE HERRERA FIRM, P.C.

Taos, New Mexicofor Appellant

LEE BOOTHBYNEW MEXICO LEGAL CENTER, P.C.

Taos, New Mexicofor Appellee

Opinion

Michael D. Bustamante, Judge1 Plaintiff-Appellant S. Louis Little ap-peals from the district court’s order grant-ing Defendant-Appellee Thomas Baigas’ motion to dismiss based on the ten-year limitation period contained in NMSA 1978, Section 37-1-27 (1967), a statute of repose. Plaintiff argues that the district court erred in finding that Section 37-1-27 applied to an unlicensed contractor. We agree. Given the strong public policy against unlicensed contractors in New Mexico, allowing an unlicensed contractor the benefit of the ten-year statute of repose would be contrary to the intent of the Legislature. Accordingly, we reverse and remand to the district court for proceed-ings consistent with this opinion. BACKGROUND2 In April 2000 Defendant constructed a deck for Paulette Jacobs (Jacobs) at her rental property in Arroyo Seco, New Mexi-co. In 2009, Plaintiff stayed at Jacobs’ rental property and was injured when he fell off of the deck and into a ditch. Plaintiff filed an action against Jacobs in August 2011. In January 2013 Jacobs identified Defendant as the individual who constructed the deck. Plaintiff then filed a second amended complaint adding Defendant as a party to the suit. 3 In the amended complaint, Plaintiff alleged that Defendant is a licensed con-

tractor in the State of New Mexico. In his answer, Defendant denied that he was licensed at the time that he built the deck. Defendant also asserted, as an affirmative defense, that Plaintiff ’s claim was time barred by Section 37-1-27. Defendant then filed a motion to dismiss arguing that, because Plaintiff ’s action was filed more than ten years after the date of substantial completion of the deck in April 2000, the claim should be dismissed.4 In response, Plaintiff argued, that because Defendant was an unlicensed contractor at the time that he built the deck, he was not entitled to the benefit of the limitation period in Section 37-1-27. However, the district court disagreed with Plaintiff that Section 37-1-27 only applied to licensed contractors and therefore granted Defendant’s motion to dismiss. On appeal, Plaintiff argues that the district court erred in finding that Section 37-1-27 could be invoked by an unlicensed contractor.DISCUSSION5 Although the parties characterize the motion before the district court as a motion to dismiss, when a party submits material outside the pleadings, and the material is not excluded by the district court, “the motion shall be treated as one for summary judgment and disposed of as provided in Rule 1-056 [NMRA].” Rule 1-012(B) NMRA. We therefore construe the district court’s decision in this case as an order granting summary judgment.

6 “Summary judgment is appropriate where there are no genuine issues of ma-terial fact and the movant is entitled to judgment as a matter of law.” Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. “We review these legal questions de novo.” Id. This case pres-ents no disputed issue of fact. The sole issue presented on appeal is whether Section 37-1-27 applies to unlicensed contractors.Relevant Principles of Statutory Interpretation7 Whether Section 37-1-27 applies to unlicensed contractors is a matter of first impression and requires this Court to en-gage in statutory interpretation. “Statutory interpretation is an issue of law that we review de novo.” Moongate Water Co., Inc. v. City of Las Cruces, 2013-NMSC-018, ¶ 6, 302 P.3d 405. When construing statutes, “our charge is to determine and give effect to the Legislature’s intent.” Id. (internal quotation marks and citation omitted).8 There are two approaches “relating to how a court performs the task of ap-plying a statute when the parties to a case disagree over the statute’s meaning”—the “plain meaning” rule and the “rejection-of-literal-language” approach. State ex rel. Helman v. Gallegos, 1994-NMSC-023, ¶¶ 1-3, 117 N.M. 346, 871 P.2d 1352. The plain meaning rule, which Defendant relies on in this case, provides that “statutes are to be given effect as written and, where they are free from ambiguity, there is no room for construction.” Id. ¶ 2 (internal quotation marks and citation omitted). The other approach, relied on by Plaintiff, was sum-marized in Helman as follows:

Courts will not add words except where necessary to make the stat-ute conform to the obvious intent of the [L]egislature, or to prevent its being absurd. But where the language of the legislative act is doubtful or an adherence to the literal use of words would lead to injustice, absurdity or contradic-tion, the statute will be construed according to its obvious spirit or reason, even though this requires the rejection of words or the sub-stitution of others.

Id. ¶ 3 (internal quotation marks and cita-tion omitted).9 Both this Court and our Supreme Court “have decided cases using both ap-proaches.” Id. ¶ 18. Our Supreme Court has advised that “courts must exercise caution in applying the plain meaning rule.” Id. ¶ 23; accord United States v. Reese,



http://www.nmcompcomm.us/Advance Opinions____-NMSC-___, ¶ 19, ___ P.3d ___ (No. 33,950, May 1, 2014). The Court explained,

Its beguiling simplicity may mask a host of reasons why a statute, apparently clear and unambigu-ous on its face, may for one reason or another give rise to legitimate (i.e., nonfrivolous) differences of opinion concerning the statute’s meaning. In such a case, it can rarely be said that the legislation is indeed free from all ambiguity and is crystal clear in its meaning.

Helman, 1994-NMSC-023, ¶ 23. There-fore, “when the literal wording of the language . . . creates consequences that the [L]egislature could not have desired, or when the literal meaning leads to con-clusions that are unjust or nonsensical, then the Court must look beyond the four corners of the statute.” Inv. Co. of the Sw. v. Reese, 1994-NMSC-051, ¶ 13, 117 N.M. 655, 875 P.2d 1086 (citations omitted). With these principles in mind, we turn to the statute at issue in this case.History and Purpose of Section 37-1-2710 Section 37-1-27 provides, inter alia, that “[n]o action . . . against any person performing or furnishing the construction or the design, planning, supervision, inspection or administra-tion of construction . . . shall be brought after ten years from the date of substan-tial completion.” “[U]nlike a statute of limitations, this [s]tatute begins to run from a specific date unrelated to the date of injury and thus may abrogate a cause of action before it accrues.” Saiz v. Belen Sch. Dist., 1992-NMSC-018, ¶ 41 n.12, 113 N.M. 387, 827 P.2d 102. A statute of limitations, on the other hand, “begins to run when a plaintiff ’s cause of action accrues or is discovered.” Id. This distinc-tion makes Section 37-1-27 a statute of repose. Id. ¶ 41.11 Section 37-1-27 and its predeces-sor were enacted “in the wake of judicial decisions exposing those involved in the construction industry to greater liability.” Coleman v. United Eng’rs & Constructors, Inc., 1994-NMSC-074, ¶ 10, 118 N.M. 47, 878 P.2d 996. Prior to the enactment of the statute, “exposure came when the cause of action accrued[,]” which typically does not happen until an injury occurs. Howell v. Burk, 1977-NMCA-077, ¶ 17, 90 N.M. 688, 568 P.2d 214. Because an injury could arise years after a construction project was completed, licensed contractors continued to be exposed to liability long after relin-quishing control over a project. Id. The

Legislature responded by limiting liability to those in the construction industry to ten years after substantial completion of a project. In this case, we must decide whether the Legislature intended for un-licensed contractors to benefit from this statute of repose. To make this determi-nation, we first examine the Legislature’s treatment of unlicensed contractors in New Mexico. See Pub. Serv. Co. of N.M. v. Diamond D Constr. Co., 2001-NMCA-082, ¶ 50, 131 N.M. 100, 33 P.3d 651 (“[W]e read the provisions of the statute together with statutes pertaining to the same subject and seek to achieve a harmonious result.” (internal quotation marks and citation omitted)).Unlicensed Contractors in New Mexico12 New Mexico statutes and case law interpreting those statutes clearly reflect a strong public policy against unlicensed contractors. The Construction Industries Licensing Act (CILA), NMSA 1978, §§ 60-13-1 to -59 (1967, as amended through 2013), was enacted to “promote the gen-eral welfare of the people of New Mexico by providing for the protection of life and property by adopting and enforcing codes and standards for construction . . . work.” Section 60-13-1.1. In Mascarenas v. Jaramillo, 1991-NMSC-014, ¶ 14, 111 N.M. 410, 806 P.2d 59, our Supreme Court discussed the purpose of CILA and em-phasized:

The object sought to be accom-plished by the Act is a healthy, or-dered market in which consum-ers may contract with competent, reliable construction contractors who have passed the scrutiny of a licensing division. The wrong to be remedied is the exploitation of the public by incompetent and unscrupulous contractors who are unable or unwilling to obtain a license. In effect, the wrongs to be remedied are circumstances which permit unlicensed con-tractors to flourish and profit at the expense of the public.

Id. To that end, Section 60-13-12(A) provides that “[n]o person shall act as a contractor without a license.” This pro-hibition has significant consequences for those who choose to disregard it. Indeed, “[a]ny person who acts in the capacity as a contractor within the meaning of [CILA] without a license” faces criminal charges, which could result in fines and imprisonment. Section 60-13-52(A); see State v. Jenkins, 1989-NMCA-044, ¶¶ 1,

3, 108 N.M. 669, 777 P.2d 908 (affirming the defendant’s conviction for contracting without a license and resulting sentence, including ninety days probation and res-titution). In addition to possible criminal sanctions, unlicensed contractors have no right to file an action for compensation for any work performed without a license. Section 60-13-30. This is the case even when the work was “fully and satisfactorily performed.” Triple B Corp. v. Brown & Root, Inc., 1987-NMSC-058, ¶ 9, 106 N.M. 99, 739 P.2d 968. In short, “[i]t is apparent that the [L]egislature casts a harsh eye on contracting without a license.” Gamboa v. Urena, 2004-NMCA-053, ¶ 12, 135 N.M. 515, 90 P.3d 534.13 Consistent with this policy, our Supreme Court has held that contracts en-tered into with unlicensed contractors are contrary to public policy and, therefore, “an unlicensed contractor may not retain payments made pursuant to a contract which requires him to perform in violation of [CILA].” Mascarenas, 1991-NMSC-014, ¶ 16. This is true even when the consumer knows that the contractor is unlicensed. Id. The Court has also rejected attempts by unlicensed contractors to recover under the equitable defense of unjust enrich-ment. Triple B Corp., 1987-NMSC-058, ¶ 12; accord Reule Sun Corp. v. Valles, 2010-NMSC-004, ¶ 42, 147 N.M. 512, 226 P.3d 611. In doing so, our Supreme Court recognized and adhered to the Legislature’s policy against unlicensed contractors. Triple B Corp., 1987-NMSC-058, ¶ 12 (“We will not recognize an equitable defense of unjust enrichment because the Legislature in Section 60-13-30 necessarily authorized the unjust enrichment of the recipients of work performed by unlicensed con-tractors. . . . Its policy must override the judicial principle that disfavors unjust enrichment.”). Thus, New Mexico statutes and case law interpreting CILA clearly “highlight the [L]egislature’s complete intolerance of unlicensed contractors.” Gamboa, 2004-NMCA-053, ¶ 14.The Legislature Did Not Intend to Permit Unlicenced Contractors to Benefit From the Limitations Period in Section 37-1-2714 Defendant relies on the plain language of the statute to argue that the Legislature intended to permit unlicensed contractors to invoke the time limitation in Section 37-1-27. Defendant asserts that the statute clearly precludes suit after ten years “against any person performing or furnishing . . . construction.” Section



http://www.nmcompcomm.us/Advance Opinions37-1-27 (emphasis added). Plaintiff, on the other hand, relies on the use of the word “contractor” in the following excerpt to argue that the statute only applies to licensed contractors: “The date of substan-tial completion shall mean the date when construction is sufficiently completed so that the owner can occupy or use the improvement for the purpose for which it was intended . . . or the date established by the contractor as the date of substantial completion[.]” Id.15 If we were to look only to the statute’s plain meaning and ignore CILA and its purpose, Defendant’s argument would be reasonable. Read literally, Defendant falls into the category of “any person” perform-ing construction. Furthermore, there is nothing in the definition of “contractor” or “contracting” that limits those definitions to licensed contractors. Section 60-13-3(A) (“[C]ontractor . . . means any person who undertakes . . . contracting. Contracting includes constructing, altering, repairing, installing or demolishing. . . .”).16 While we recognize that the plain language of the statute does not specifically limit its application to licensed contrac-tors, applying the statute as Defendant asks us to do would tend to undermine the purpose of Section 37-1-27 and CILA. Therefore, we conclude that the second approach to statutory interpretation de-scribed earlier is the appropriate one to follow in this case. We look beyond the four corners of the statute because the literal wording of Section 37-1-27 creates consequences that the Legislature could not have desired and which, if applied literally, would lead to conclusions that are contrary to the Legislature’s intent—a result that we cannot permit. See Inv. Co. of the Sw., 1994-NMSC-051, ¶ 13.

17 As we explained above, the limita-tion period set forth in Section 37-1-27 is an important benefit to contractors. It reduces their exposure to liability by establishing a clear deadline within which an action may be brought. Because “[t]he public policy behind the licensing require-ment of [CILA] is so strong[,]” Mascarenas, 1991-NMSC-014, ¶ 16, we conclude that the Legislature could not have intended unlicensed contractors to benefit from Section 37-1-27.18 Given our Legislature’s position on unlicensed contracting, we cannot extend unlicensed contractors any semblance of legitimacy under the law. A statute that was enacted to shield those in the construc-tion industry from liability after a certain point, requires that those protected by it be legitimately in that industry; i.e., be licensed. It would be inconsistent with our Legislature’s policy to afford protection to someone for work that they performed in violation of the law.19 We note that, we have previously rejected the argument that because the statute protects “any person,” owners who design and construct an improvement to real property and continue to own it after the ten-year period are protected. Jacobo v. City of Albuquerque, 2005-NMCA-105, ¶¶ 6-7, 138 N.M. 184, 118 P.3d 189. Although the reasoning behind our holding in that case is not applicable here, it nonetheless demonstrates that “any person” refers to a select group of individuals—those in-volved in the construction industry. Id. ¶ 9 (“Section 37-1-27 . . . [was] specifically designed to protect architects, builders, and those involved in the construction industry.”). Thus, our holding determining that only those legitimately involved in that industry are entitled to the protection

of Section 37-1-27 is consistent with the prior decisions of this Court.20 The effect of our holding is to create another detriment to contracting without a license, which is consistent with the purpose of CILA. While Defendant argues that this Court should apply the statute to his benefit because, even though he is barred from seeking affirmative relief by our state’s statutes, he should not be precluded from defending against claims, [AB 19-20] our holding does not prevent an unlicensed contractor from defending an action against him. Rather, it simply refuses to allow a ten-year cut off that was intended to protect those legitimately in the construction industry.CONCLUSION21 We hold that Section 37-1-27 does not permit unlicensed contractors to invoke its protections. We therefore reverse the district court’s order in favor of Defendant. Because we conclude that Section 37-1-27 does not apply to unli-censed contractors, and that holding is dispositive, we do not address Plaintiff ’s argument regarding Terry v. New Mexico State Highway Commission, 1982-NMSC-047, 98 N.M. 119, 645 P.2d 1375.22 To the extent that the parties dis-agree regarding which limitation period does apply if Section 37-1-27 does not,[RP 206] we leave it to the district court to resolve that issue in the first instance.23 IT IS SO ORDERED.

MICHAEL D. BUSTAMANTE, Judge

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




Certiorari Denied, October 8, 2014, No. 34,891



RABO AGRIFINANCE, INC., Successor in Interest to Farm Credit Bank of Texas,Plaintiff-Appellee,

v.TERRA XXI, LTD., a Texas Limited Partnership, composed of

VEIGEL CATTLE Company, as General Partner; ROBERT WAYNE VEIGEL, a/k/a BOB W. VEIGEL;

ELLA MARIE WILLIAMS VOGEL, a/k/a ELLA MARIE VEIGEL; VEIGEL CATTLE COMPANY, a Texas corporation;

VEIGEL FARM PARTNERS, a Texas general partnership d/b/a Veigel Partners; BOB VEIGEL, INC., a Texas corporation;

STEVE VEIGEL, INC., a Texas corporation; VEIGEL-KIRK, INC., a Texas corporation; VICKI VEIGEL, INC., a Texas corporation;

VEIGEL FARMS, INC., a Texas corporation; TERRA PARTNERS, a Texas general partnership;

BURNETT & VEIGEL, INC., a Texas corporation, as general partner of Terra Partnership, a Texas general partnership; and,

ALL UNKNOWN CLAIMANTS OF INTEREST IN THE PREMISES ADVERSETO THE PLAINTIFF,

Defendants-AppellantsDocket No. 32,697 (filed June 25, 2014)

APPEAL FROM THE DISTRICT COURT OF QUAY COUNTYDREW D. TATUM, District Judge

RICHARD F. ROWLEY, IIRICHARD F. ROWLEY, III

ROWLEY LAW FIRM, L.L.C.Clovis, New Mexico

for Appellee

THOMAS C. BIRDJAMES L. RASMUSSEN

JUSTIN B. BREENKELEHER & MCLEOD, P.A.

Albuquerque, New Mexicofor Appellants

Opinion

Cynthia A. Fry, Judge1 Defendants, collectively referred to as Terra throughout this Opinion, appeal the district court’s orders granting sum-mary judgment in favor of Plaintiff1 in a mortgage foreclosure proceeding and denying their motion under Rule 1-060(B)(5) NMRA for relief from the judgment. Terra argues that the district court erred in applying the after-acquired title doctrine and in denying their post-judgment mo-tion under Rule 1-060(B)(5), arguing that

the judgment has been satisfied. Because we disagree with Terra, we affirm.BACKGROUND2 This is the second time this case has been before this Court, and we reiterate the basic facts underlying this suit from the first opinion. Rabo Agrifinance, Inc. v. Terra XXI, Ltd., 2012-NMCA-038, 274 P.3d 127. Plaintiff is the holder of two promissory notes secured by a mortgage covering property located in Quay and Guadalupe Counties, New Mexico (the New Mexico property) and a deed of trust covering land in Deaf Smith County, Texas. Id. ¶ 2. At the time Terra granted

the mortgage, it owned an undivided fifty percent interest in the New Mexico prop-erty. Id. Five years later, Terra received a warranty deed to the New Mexico prop-erty that effectively gave it a 100 percent ownership interest in the property. Id. In 2005, Plaintiff successfully sued in federal court to collect on the amounts due on the promissory notes. Id. ¶ 3. Plaintiff subsequently brought suit in New Mexico to confirm the judgment entered against Terra and sought to foreclose the mort-gage on the New Mexico property to the full extent of Terra’s 100 percent interest on the basis of the after-acquired title doc-trine. Id. ¶ 4. “The common law doctrine of after-acquired title is one under which title to land subsequently acquired by a grantor who previously attempted to con-vey title to the same land, which he then did not own, completely and automatically inures to the benefit of his prior grantee.” Hays v. King, 1989-NMSC-078, ¶ 8, 109 N.M. 202, 784 P.2d 21.3 In the first appeal, we reversed the district court’s ruling in favor of Terra that the doctrine of after-acquired title did not apply in this case. We held that “as a general matter, the after-acquired title doctrine can be applied in New Mexico in favor of a mortgagee of property based on mortgage covenants unless particular circumstances warrant non-application.” Rabo Agrifinance, Inc., 2012-NMCA-038, ¶ 18. Because the mortgage purported to convey Terra’s interest in the New Mexico property “with mortgage covenants,” id. ¶ 7 (internal quotation marks omitted), we remanded to the district court for further proceedings regarding the application of the after-acquired title doctrine to the facts of this case. Id. ¶ 18.4 On remand, the district court ap-plied the after-acquired title doctrine and concluded that because Terra granted the mortgage at issue “with mortgage covenants,” it is estopped from claiming that the mortgage did not attach to the entire property when Terra subsequently obtained a 100 percent interest. Because Terra was estopped to claim that the mortgage did not attach to the entire New Mexico property, the district court granted summary judgment in favor of Plaintiff.5 Following the entry of summary judgment, Terra sought to conduct fur-ther discovery on the issue of whether

1 In this Opinion, the term “Plaintiff ” includes Rabo Agrifinance, Inc. and its predecessor in interest, Farm Credit Bank of Texas.



http://www.nmcompcomm.us/Advance Opinionsland in Texas that was also used to secure the mortgage had been sold, and, if so, whether the proceeds of the alleged sale satisfied the judgment. Terra ultimately filed a motion for relief from the judgment under Rule 1-060(B)(5), arguing that the judgment had indeed been satisfied be-cause Plaintiff allegedly received sufficient funds in the sale of the Texas property to satisfy its judgment against Terra. The district court denied Terra’s motion, and Terra now appeals.DISCUSSIONI. After-Acquired Title Doctrine6 In arguing that the district court erred in applying the after-acquired title doctrine, Terra makes three main contentions. Terra argues that (1) the after-acquired title doctrine is limited by the extent of the grantor’s convey-ance, (2) the mortgage covenants did not expand the interest Terra purported to convey, and (3) the district court mis-takenly focused on Plaintiff ’s intent in its application of the after-acquired title doctrine. We address these contentions in two parts. First, we group Terra’s first two arguments into the basic determina-tion of what Terra purported to convey in the mortgage. Second, we determine whether the district court improperly considered the Plaintiff ’s intent in ap-plying the doctrine.A. Terra Purported to Convey a 100

Percent Interest in the Property7 As a general matter, we take no issue with Terra’s argument that application of the after-acquired title doctrine is limited by the extent of the grantor’s conveyance. As noted above, the doctrine “estops a grantor who obtains title to land after already granting the land from claiming the land as against the grantee.” Rendle-man v. Heinley, 2007-NMCA-009, ¶ 3, 140 N.M. 912, 149 P.3d 1009. “A grantor who executes a deed purporting to convey land to which he has no title or to which he has a defective title at the time of the conveyance will not be permitted, when he afterward acquires good title to the land, to claim in opposition to his deed as against the grantee[.]” Hays, 1989-NMSC-078, ¶ 9 (internal quotation marks and citation omitted). Terra’s argument is therefore correct to the extent that if it did not purport to convey a 100 percent interest in the property, the after-acquired title doctrine could not benefit Plaintiff. See Rendleman, 2007-NMCA-009, ¶ 18 (explaining that the after-acquired title doctrine did not apply in another case

“because there had been no attempt by the grantor to convey the property in question to one of the parties”). Thus, the threshold issue before us is what Terra purported to convey in the mortgage documents. We review this issue de novo. Id. ¶ 14 (“Whether the doctrine of after-acquired title applies is a question of law, which we review de novo.”).8 Terra argues that it did not purport to convey a 100 percent interest in the property because it only purported to convey its “interest in and to” the New Mexico property in the mortgage. Terra likens this language to a quitclaim deed, to which the after-acquired title doc-trine is likely inapplicable. See Hays, 1989-NMSC-078, ¶ 5 (“[The plaintiff cites] as authority . . . cases supporting the propositions that a quitclaim deed vests only the title held by the grantor at the time of the conveyance, and that the after-acquired title doctrine does not ap-ply to one claiming title under a quitclaim deed. . . . [W]e have no quarrel with the substance of these cited authorities[.]”). Terra further argues that language in the mortgage stating that Terra granted, mortgaged, and conveyed its interest in and to the New Mexico property “with mortgage covenants” does not operate to enlarge the interest purportedly conveyed by the mortgage. For the reasons stated below, we conclude that the grant of the mortgage “with mortgage covenants” purported to convey a 100 percent inter-est in the property and that the district court therefore properly applied the after-acquired title doctrine.9 As an initial matter, we reject Defen-dants’ invitation to view language in the mortgage as analogous to a quitclaim deed so as to preclude application of the after-acquired title doctrine. “[A]n essential characteristic of a quitclaim deed is that it contains no warranties or covenants by the grantor.” R & R Land Dev., L.L.C. v. Am. Freightways, Inc., 389 S.W.3d 234, 242 (Mo. Ct. App. 2012); see 23 Am. Jur. 2d Deeds § 10 (2014). The mortgage in this case was explicitly granted “with mort-gage covenants” as well as with a litany of further “representations, warranties, and covenants.” We thus conclude that any similarity between the “my interest in and to” language in this mortgage and language often found in quitclaim deeds ends at a purely semantic level.10 Furthermore, the phrase “mort-gage covenants” has a specific, statutorily defined meaning in New Mexico. NMSA

1978, Section 47-1-40 (1947) states that the use of “mortgage covenants” in a mortgage is construed to mean that “the mortgagor . . . covenants with the mortgagee . . . that he is lawfully seized in fee simple of the granted premises; that they are free from all encumbrances; that the mortgagor has good right to sell and convey the same; and that he will . . . warrant and defend the same to the mortgagee . . . forever against the lawful claims and demands of all persons.” (emphasis added) (internal quotation marks omitted). We therefore construe “with mortgage covenants” as covenanting the entirety of the premises listed in the mortgage. We do not deny that this presumption can be overcome by an express statement to the contrary; however, we find no such language in the mortgage at issue. In particular, the mort-gage makes no mention that the granted premises are limited to a fifty percent inter-est, and we would be required to read such language into the mortgage to determine that the statement “my interest in and to” referred to only a fifty percent interest. Cf. Sharpe v. Smith, 1961-NMSC-038, ¶ 18, 68 N.M. 253, 360 P.2d 917 (“It is the intent which is expressed in the deed and not a secret intention of the party . . . existing at the time of execution that is controlling.” (internal quotation marks omitted)).11 Thus, when we construe the lan-guage “with mortgage covenants” in accordance with Section 47-1-40, the mortgage purports to convey the entirety of the granted premises—the property listed in the mortgage—and not only the fifty percent interest Terra possessed at the time it executed the mortgage. This is not an “expansion” of the interest Terra conveyed, as Terra argues. Instead, when construed in accordance with Section 47-1-40, “with mortgage covenants” clarifies what “interest in and to” the property Terra purported to convey: fee simple absolute. This Court’s opinion in the first appeal concluded as much in the general sense, and we see no reason to fully reit-erate this Court’s analysis on this point. Rabo Agrifinance, Inc., 2012-NMCA-038, ¶ 12 (stating that it is well settled that when one purports to convey land in fee simple through a mortgage, any title to the property acquired afterwards will inure to the benefit of the mortgagee). In sum, because Terra purported to convey the entire property listed in the mortgage, the district court properly applied the after-acquired doctrine to conclude that the subsequently acquired



http://www.nmcompcomm.us/Advance Opinionsfifty percent interest inured to the benefit of Plaintiff.2

B. The District Court Did Not Rely on the Grantee’s Intent

12 Terra also argues that the district court inappropriately focused on the in-tent of the grantee—Plaintiff—in applying the after-acquired title doctrine. While we are uncertain which portion of the district court’s decision evinces a reliance on Plaintiff ’s intent since Terra does not provide citation to the record to support this assertion, we assume that the basis of Terra’s contention is the district court’s statement in its decision letter that Plaintiff “believed the mortgage to cover 100 [per-cent] of the real property at issue herein, but [Terra] only owned an undivided 50 [percent] interest in the real property.” Our reading of the district court’s decision on the after-acquired title doctrine issue, however, does not show any reliance by the district court on Plaintiff ’s intent. Similar to what we concluded above, the district court determined that Terra “granted the mortgage ‘with mortgage covenants’ [and is] now estopped by the after-acquired title doctrine from claiming the mortgage did not attach to the entire real property at the time [Terra] obtained [a 100 percent interest] in the real property.”II. Rule 1-060(B)(5)13 Terra argues that the district court erred in denying its motion under Rule 1-060(B)(5) that the judgment in this case has been satisfied. Rule 1-060(B)(5) provides that “the court may relieve a party or his legal representative from a final judgment . . . [when] the judgment has been satisfied, released, or discharged[.]” “We generally review the trial court’s rul-ing under Rule 1-060(B)[(5)] for an abuse of discretion except . . . where the issue is one of pure law.” Edens v. Edens, 2005-NMCA-033, ¶ 13, 137 N.M. 207, 109 P.3d 295 (internal quotation marks and citation omitted).14 We briefly set out a simplified version of the alleged facts pertinent to Terra’s argument. In addition to securing

the underlying notes in this case with the mortgage covering the New Mexico property, Terra also secured the notes with a deed of trust covering a large portion of land in Texas. Terra subsequently granted second and third lien interests on the prop-erties. Following default and non-judicial foreclosure of the Texas property, Ag Ac-ceptance Corporation (AAC), the third lienholder and entity seeking foreclosure, was the successful bidder and took the Texas property subject to Plaintiff ’s first and second liens. Terra alleges that AAC then sold the Texas property to Champion Feeders, LLC some ten years later, free and clear of Plaintiff ’s first and second liens and the related judgment lien. Terra argues that any payment Plaintiff received from AAC to release its liens on the property should have been credited against the judgment.15 Terra raises two points. Terra first argues that the debt and judgment in the present case has been satisfied by “neces-sary implication” as a result of the convey-ance of the Texas property free and clear of Plaintiff ’s liens. Second, Terra argues that if Plaintiff denies receiving compensation for the release of its liens on the Texas prop-erty, the primary fund doctrine requires that the judgment be satisfied first from the Texas property, not the New Mexico property.16 Terra cites no authority to support its first argument—that monies paid by a successful bidder in a foreclosure sale to a senior lienholder in order to extinguish the senior lienholder’s liens should be credited toward the judgment debtor’s debt. Instead, Terra cites NMSA 1978, § 48-7-4(A) (1991), which states that “[w]hen any debt . . . secured by a mortgage or deed of trust upon any real estate in the state has been fully satisfied, it is the duty of the mort-gagee . . . to cause the full satisfaction of it to be entered of record in the office of the county clerk.” We fail to see how this stat-ute supports Terra’s assertion. If Terra had satisfied its debt to Plaintiff then Plaintiff would have a duty to record it in the office of the county clerk. See § 48-7-4(A). That

is not what happened here. Terra defaulted on its obligations, and the property secur-ing such obligations was foreclosed on. Therefore, because Terra cites no authority to support its proposition, we conclude that the district court did not abuse its discretion in denying the Rule 1-60(B)(5) motion on this point. In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 (stating that where a party cites no authority to support an argument, we may assume no such authority exists).17 As for Terra’s argument regarding the primary fund doctrine, we decline to review this contention because Terra did not preserve the error below. Terra acknowledges that it did not refer to the primary fund doctrine in its Rule 1-060(B)(5) motion, nor did it cite to the case it primarily relies on to support its argument. However, Terra contends that its argument below embodies the principles of the primary fund doctrine and that therefore the issue was preserved. We disagree. We will not conclude that the district court abused its discretion in failing to apply a doctrine of law when that doctrine was not presented to the district court. See Woolwine v. Furr’s, Inc., 1987-NMCA-133, ¶ 20, 106 N.M. 492, 745 P.2d 717 (stating that to preserve an issue for review on ap-peal, it must appear that the plaintiff fairly invoked a ruling on the same grounds ar-gued in the appellate court). Accordingly, we conclude that the district court did not abuse its discretion in denying Terra’s motion under Rule 1-060(B)(5).CONCLUSION18 For the foregoing reasons, we affirm the district court’s grant of summary judg-ment and its denial of Terra’s Rule 1-060(B)(5) motion.19 IT IS SO ORDERED.

CYNTHIA A. FRY, Judge

WE CONCUR:JAMES J. WECHSLER, Judge MICHAEL E. VIGIL, Judge

2 Terra requested that if this Court affirms the judgment, the judgment be modified to exclude the “Snipes Property,” which was excluded from the judgment in the first appeal but was not excluded from the judgment we are reviewing in the present appeal. We believe such a determination—whether the property was inadvertently included in the judgment—is best handled by the district court on remand.



“AniPay” is a registered ISO/MSP of Harris, N.A., Chicago, IL.

Call 866.376.0950 or visitwww.aniscape.com/nmbar

credit card processing

Recommended by over60 bar associations!

Member Benefit

Helping Families and Children

Allison P. Pieroni Attorney at Law

P ni Family Law, L.L.C. Helping Families and Children

Allison P. Pieroni Allison P. Pieroni

P niHelping Families and Children

Allison P. Pieroni Allison P. Pieroni

w,w,w, LLLL.L.C.C.C

Thank you for your support and

referrals.

3200 Carlisle Blvd NE, Suite 219 Albuquerque, NM 87110 [email protected]

v (505) 830-6032 f (505) 830-6033

www.apfamilylaw.com

http://www.aniscape.com/nmbar


http://www.apfamilylaw.com


Luckily, you could save right now withGEICO’S SPECIAL DISCOUNT.

MENTION YOUR STATE BAR OF NEW MEXICO MEMBERSHIP TO SAVE EVEN MORE.

Some discounts, coverages, payment plans and features are not available in all states or in all GEICO companies. See geico.com for more details. GEICO and Affiliates. Washington DC 20076. GEICO Gecko image © 1999-2012. © 2012 GEICO.

Years of preparation come down to a couple days of testing and anxiety. Fortunately, there’s no studying required to save with a special discount from GEICO just for being a member of State Bar of New Mexico . Let your professional status help you save some money.

You spent years preparing for the Bar Exam...

geico.com/ bar / SBNM LAW OFFICE OF GEORGE “DAVE” GIDDENS, P.C.

+ Martindale-Hubbell AV Rated

+ 505.271.1053

+ GiddensLaw.com

Expertise, Integrity, ResultsAt the Law Office of George “Dave” Giddens, P.C., our goal is to show you how important you are to us from the moment you walk in our door. Our attorneys are talented litigators and counselors who offer dependable advice. We’re experienced in providing unique perspectives and personalized solutions for debt problems, business matters and personal injury.

Bankruptcy, Creditors and Debtors, Litigation, Business Law, Employment, Workers Compensation, Personal Injury

experience credibilityBusiness Valuation and Damage Calculations are technical. Our analysis is based

on a vast body of knowledge, solid judgment, and broad experience. We are highly credentialed, have access to substantial technical resources and we

have credibility in the courtroom.

Let the CPA’s at Baca + Redwine act as your consultants or testifying experts.

Find out more at bacaredwinecpa .com


Vacancy Announcement Federal Public Defender for the

District of New Mexico

The United States Court of Appeals for the Tenth Circuit is accepting applications from all qualified persons for the position of Federal Public Defender for the District of New Mexico. The term of office is four years, with potential for successive appointments. The current authorized annual salary is $157,100. The Federal Public Defender provides federal criminal defense services

to individuals unable to afford counsel.

The current Federal Public Defender’s term expires on August 8, 2015 and he is seeking reappointment. The position is located in Albuquerque, New Mexico.

For more information on how to apply, go to our website at www.ca10.uscourts.gov and select “Employment” in the “About the Court” menu.

The deadline for applications is January 30, 2015.

The Federal Judiciary is an Equal Opportunity Employer.

Thank You to

Modrall Sperling for its Generous Support of the Civil Legal Clinic!

The Second Judicial District Pro Bono Committee and the Volunteer Attorney Program would like to thank the Modrall Sperling law firm, its attorneys and staff for volunteering their time and expertise at the November 5th Civil Legal Clinic. The Clinic is held on the first Wednesday of every month at the Second Judicial District Courthouse in the 3rd floor conference room from 10 a.m. until 1 p.m. Twenty-two individuals received assistance at the November clinic thanks to the dedication of eight attorneys and staff from Modrall Sperling. Thank you:

Opportunities to sponsor or volunteer at an upcoming Clinic are available beginning in January 2015. If you or your firm is interested,

please contact the Volunteer Attorney Program at 505-797-6077.

William Keleher Spencer EdelmanMichael Carrico Frank DavisBarry Berenberg Ben NucciCameron Johnson Cristina Mulcahy

WORKERS’COMPENSATIONJarner Law Office

is gratefully acceptingWorkers’ Compensation

Cases

Los Lunas865-1200

&Albuquerque842-0096

Mark D. Jarner

Mark D. Jarner is a Board Recognized Specialist in Workers’ Compensation.

http://www.ca10.uscourts.gov


Visit the State Bar of

New Mexico’s website

www.nmbar.org

Carol McGuire, RN, MSN, CLNC

575-317-2704E-mail: [email protected]

Dedicated to saving you time and money.

David StottsAttorney at Law

Business LitigationReal Estate Litigation

242-1933

(505) 988-2826 • [email protected]

No need for another associateBespoke lawyering for a new millennium

THE BEZPALKO LAW FIRM Legal Research and Writing

(505) 341-9353 www.bezpalkolawfirm.com

MORNINGSTAR ENTERPRISES, LLCMARIE SUSAN LEE, CPA MBA CFE

FORENSIC ACCOUNTING(505) 235-3500 • [email protected]

www.morningstarcpa.com




http://www.bezpalkolawfirm.com


http://www.morningstarcpa.com


Albuquerque’s only elementary school accredited by the

Independent Schools Association of the Southwest.

Small class sizeEnvironmental studies programExtended Day ProgramFinancial aid available

ManzanoDay School

Now accepting applications

for the 2015-2016 school year.

SundayOpen HouseNovember 9

2-4 p.m.

Pen & PadFine Pens, Paper, Inks, Refills, Stationery, Leather . . .

8236 Menaul Blvd NE 293-1144(Hoffmantown Shopping Center)

3rd & Copper 293-1145 (Downtown)

Tim Kelly, CPA/ABV/CFF, ASA, CMEA, MBA

Ed Street, CPA/ABV/CFF, CVA

FORENSIC ACCOUNTING & LITIGATION SUPPORT SERVICES

Albuquerque | Phoenix

505.998.3200 | redw.com

For thorough, accurate and defensible case analysis and expert reports, rely on REDW’s experienced experts.

Lost Profits and Economic Damage Calculations • Fraud Examinations and Analysis • Forensic Accounting for Breach of Contract, Business Disputes and Marital Dissolutions • Business Valuations and Equipment Appraisals • Complex Accounting and Financial Issues • Insurance Claims Analysis • Expert Witness Testimony

Al l adver t i s ing 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

e-mail [email protected]

SUBMISSION DEADLINES



Eric Ortiz Law Now Hiring Associate Attorney!Small but rapidly growing civil litigation law firm located in Albuquerque is seeking to hire attorneys who are interested in focusing on litigation. Prospective employees must have excellent legal research and writing skills. Courtroom experience is preferred but not re-quired. Primary practice areas are probate and consumer rights litigation. Salary is up to $70k per year depending on experience with possi-bilities for bonuses as well as costs of all CLEs and bar dues. Please fax resume to (866) 897-9491 or e-mail to [email protected]

Experienced Insurance Defense Attorney – GEICO AlbuquerqueGEICO Staff Counsel, the Law Office of Daniel P. Ulibarri, is seeking an Experienced Insurance Defense Attorney for its Albu-querque, NM Office, which defends GEICO insureds in third party cases and GEICO in first party cases statewide. The Attorney will: handle and manage litigation files from inception through trial statewide; prepare motions and memoranda of law; prepare pleadings, discovery, demands and responses; and draft reports and provide file analysis. Proficiency in computer use is a must. Appli-cants must be in good standing and licensed to practice in New Mexico’s State and Federal courts. For position announcement and ap-plication instructions go to www.geico.jobs and hit the apply now button.

13th Judicial District AttorneySenior Trial Attorney, Assistant Trial Attorney, Associate Trial AttorneyCibola, Sandoval, Valencia CountiesSenior Trial Attorney - This position requires substantial knowledge and experience in criminal prosecution, rules of criminal pro-cedure and rules of evidence, as well as the ability to handle a full-time complex felony caseload. Admission to the New Mexico State Bar and a minimum of five years as a prac-ticing attorney are also required. Assistant Trial Attorney - The 13th Judicial District Attorney’s Office is accepting applications for an entry to mid level attorney to fill the positions of Assistant Trial Attorney. This position requires misdemeanor and felony caseload experience. Associate Trial At-torney - an entry level position for Cibola (Grants), Sandoval (Bernalillo) or Valencia (Belen) County Offices. The position requires misdemeanor, juvenile and possible felony cases. Upon request, be prepared to provide a summary of cases tried. Salary for each position is commensurate with experience. Send resumes to Kathleen Colley, District Office Manager, PO Box 1750, Bernalillo, NM 87004, or via E-Mail to: [email protected]. Deadline for submission of resumes: Open until positions are filled.

Attorney with Current Case LoadRosales Law Group seeks an attorney with a current case load. If interested, please send resume and recent writing sample to: Hiring Manager, Rosales Law Group, P.C., P.O. Box 9220, Albuquerque, NM 87119. All resumes are kept confidential.

Lawyer PositionGuebert Bruckner P.C. seeks an attorney with up to five years experience and the desire to work in tort and insurance litigation. If inter-ested, please send resume and recent writing sample to: Hiring Partner, Guebert Bruckner P.C., P.O. Box 93880, Albuquerque, NM 87199-3880. All replies are kept confidential. No telephone calls please.

Contract Licensed AttorneysZia Pueblo is seeking contract licensed attor-neys to fill 2 part-time positions: prosecutor and public defender. Mail letters of interest, a resume and 3 references to Office of the Gov-ernor, 135 Capitol Square Drive, Zia Pueblo, NM 87053. Open until filled.

Santa Fe County – Assistant County AttorneySanta Fe County is seeking qualified indi-viduals to join its growing team of attorneys. Successful candidate will focus their practice in areas assigned based upon experience, need, and interest. The ideal candidate is that with strong analytical, research, com-munication, and interpersonal skills, who enjoy working hard in a collaborative, fast-paced environment on diverse and topical issues that directly impact the community in which they live or work. Salary range is from $27.0817 to $40.6221 per hour, depending upon qualifications and budget availability. Applicant must be licensed to practice law in the State of New Mexico and in the New Mexico federal courts and have a minimum of three (3) years of experience practicing law. This position is open until filled, so interested individuals should apply as soon as possible. Individuals interested in joining our team must apply through Santa Fe County’s web-site, at http://www.santafecountynm.gov/job_opportunities.

ClassifiedPositions

Las Cruces AttorneyHolt Mynatt Martínez, P.C., an AV-rated law firm in Las Cruces, New Mexico is seeking an associate attorney with 0–3 years of experience to join our team. Duties would include providing legal analysis and advice, preparing and filing legal plead-ings and documents, performing legal research, conducting pretrial discovery, preparing for and attending administra-tive and judicial hearings, civil jury trials and post-trial activities. The firm’s practice areas include insurance defense, civil rights defense, commercial litigation, contracts and municipal law. Successful candidates will have strong organizational and writing skills, exceptional communication skills, and the ability to interact and develop col-laborative relationships. Excellent salary and benefits. Please send your cover letter, resume, writing sample and references to [email protected].

Trial LawyerGREAT PAY for a hungry, compassionate, hard-working and successful trial lawyer who wants to fight for injured plaintiffs. We need someone with a track record of loyalty, tenac-ity, and successful results at trial. Less experi-enced lawyers will be considered if extremely qualified and extremely motivated. See our Mission Statement at www.ParnallLaw.com. Email cover letter, resume, references, and university and law school grade transcripts to [email protected].

Assistant District AttorneyThe Fifth Judicial District Attorney’s office has an immediate position open to a new or expe-rienced attorney. Salary will be based upon the District Attorney Personnel and Compensation Plan with starting salary range of an Associ-ate Trial Attorney to a Senior Trial Attorney ($41,685.00 to $72,575.00). Please send resume to Janetta B. Hicks, District Attorney, 400 N. Virginia Ave., Suite G-2, Roswell, NM 88201-6222 or e-mail to [email protected].

Attorney – Civil Rights FellowThe American Civil Liberties Union (ACLU) of New Mexico seeks a full-time Staff At-torney. This position will work on border-specific, immigration-related civil liberties cases. For the full position announcement and how to apply: http://www.aclu-nm.org/job-announcement-attorney-civil-rights-fellow/2014/11/. Position open until filled, preference given to applications received by January 5, 2015.


http://www.geico.jobs


http://www.santafecountynm.gov/


http://www.ParnallLaw.com



http://www.aclu-nm.org/


Attorney – Reproductive Freedom FellowThe American Civil Liberties Union (ACLU) of New Mexico seeks a full-time Staff At-torney, based in Albuquerque. This position will be focused on expanding reproductive freedom in New Mexico as well as civil rights litigation. For the full position announcement and how to apply: http://www.aclu-nm.org/job-announcement-attorney-reproductive-freedom-fellowship/2014/11/. Position open until filled, preference given to applications received by January 5, 2015.

ParalegalThe Santa Fe office of Hinkle Shanor LLP seeks a paralegal for the practice areas of environmental, water, natural resources, real property, public utility and administra-tive law. Candidates should have a strong academic background, excellent research skills and the ability to work independently. Competitive salary and benefits. All inquires kept confidential. Santa Fe resident pre-ferred. Please email resume to: [email protected]

Part-time Office AssistantPart-time Office Assistant needed immedi-ately for a busy, small law office in downtown Santa Fe. Weekday mornings or afternoons. Law office experience preferred. Compensa-tion DOE. Position is temporary with the possibility of becoming permanent. Please email or fax cover letter and resume to [email protected], (505) 726-4689.

Deputy Chief Counsel (Lawyer-Advanced)The New Mexico Department of Public Safety is seeking an attorney to fill a lawyer-advanced position in the Office of Legal Affairs at the Department of Public Safety headquarters in Santa Fe, New Mexico. Dep-uty Chief Counsel represents the divisions and associated bureaus of DPS. Divisions include the New Mexico State Police, Motor Transportation Division Police, Technical Support Division, Training and Recruiting Division, and Administrative Services. The Office of Legal Affairs provides legal counsel, litigation services, and support for the agency. Deputy Chief Counsel will be responsible for providing comprehensive legal advice and assistance in personnel matters before the Disciplinary Hearing Board (DHP) the State Personnel Office (SPO), the DPS Advisory Commission, and Magistrate, District and Appellate Courts as applicable. The Deputy Chief Counsel will be expected to provide comprehensive legal advice and assistance to DPS management, staff, contract counsel and clients in the areas of FLSA, Equal Pay Act, EEO and other civil rights matters. Deputy Chief Counsel will also draft and/or review policies, procedures, agreements and contracts for legal sufficiency and compli-ance with DPS goals and strategic plan and will draft and review legislation as needed. The position requires a JD Degree, and a minimum of five (5) years experience prac-ticing law and a valid New Mexico driver’s license. To be considered for employment any interested persons must apply with the State Personnel Office at www.state.nm.us/spo by the closing date of December 31, 2014. In addition to applying on line, please send a re-sume, writing sample and letter of interest to: Darlene Montoya, Office Administrator, P.O. Box 1628, Santa Fe, New Mexico 87504-1628 or [email protected]. The salary range is $50,897 – $88,524 and is determined on education and experience.

Doña Ana County-County AttorneyServes as in-house counsel to the County. Duties include management of the legal/risk department; provision of legal services to the County; analysis and mitigation of potential risks to the County, including procurement of insurance coverage; and implementation/monitoring of policies, procedures, and programs to reduce risks to County person-nel and property. Job Application & Job Announcements available on our website at:www.donaanacounty.org

Seeking Legal AssistantThe Branch Law Firm is seeking a non-smoking full-time legal assistant with a minimum of 4+ yrs. experience in civil litigation. Position requires a team player with legal experience, in addition to strong word processing skills including proficiency with Word, knowledge of Court System (State & Federal) and superior clerical and organizational skills. Trial experience a plus. Minimum typing speed: 70 wpm. Excellent Salary and benefits! For consideration, email, mail or fax resume to: Patricia Sanchez, Paralegal, Branch Law Firm, 2025 Rio Grande Blvd. NW, Albuquerque, NM 87104. Email: [email protected] or Fax: (505) 243-3534. All inquiries and interviews will be maintained with strict confidence.

Office Space

Taos Conference and Office SpaceTaos conference and office space available for depositions and mediations. Call Robyn 575-758-1225

Of Counsel AttorneyFurnished office available in existing law firm. We are located near the Albuquerque International Sunport. Benefits include: Copier, Fax Line, Printer, Receptionist, Mail Service, 1-800 Number, Conference Rooms, Library, Reference Materials and co-counsel opportunities. Please email [email protected] All resumes are kept confidential.

Premier Office Spaceavailable at 201 Third Street NW, Suite 500 – full service offices and cubicles complete with reception, VoIP phones and phone line, high-speed internet, free WiFi and confer-ence room use. Amenities include covered parking and Starbucks coffee service. Call Sandee at 505.999.1726.

Furnished Offices for RentTwo furnished offices for rent, one block from courthouses, all amenities: copier, fax, telephone system, conference room, internet, phone service, call Ramona for more infor-mation, 243-7170.

Court Executive Officer 3The Second Judicial District Court, located in Albuquerque, New Mexico, is recruiting for a Court Executive Officer 3 supervised by the Chief Judge. Minimum qualifications: Bach-elor’s degree from an accredited college or university in business or public administra-tion or a related field. Experience: 8 years in court management or advanced managerial experience in budget, finance, procurement, human resource and contracts administra-tion, including 3 years supervisory experi-ence. Relevant graduate level education may substitute for up to 2 years experience at a rate of 30 semester hours equals 1 year of experience. Education may not substitute for supervisory experience. Annual Salary: $39.423 hourly to $49.279 hourly + benefits. A complete job announcement, application and resume supplemental forms are avail-able on-line at www.nmcourts.gov. Apply at or send application or resume supplemental form with proof of education to the Second Judicial District Court, Human Resource Office, P.O. Box 488 (400 Lomas Blvd. NW), Albuquerque, NM 87102. Applications not including copies of information requested on the employment application will be rejected. Resumes will not be accepted in lieu of an application. CLOSING DATE: December 26, 2014 at 5:00 p.m. EOE

http://www.aclu-nm.org/


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


http://www.donaanacounty.org


http://www.nmcourts.gov


Downtown OfficesOne or two offices available for rent, includ-ing secretarial areas, at 2040 4th St. NW (I-40 & 4th St.), ABQ. Rent includes receptionist, use of conference rooms, high speed internet, phone system, free parking for staff and cli-ents, use of copy machine, fax machine and employee lounge. Contact Jerry or George at 505-243-6721 or [email protected].

Share Office SpaceSHARE OFFICE SPACE with two attorneys at 8010 Menaul NE, Albuquerque for $450 per month, includes telephone. Call Audria at 299-8999.

Office Space Three Blocks from County Court HouseOffice space available in Santa Fe three blocks from the new County Court House. Approxi-mately 1250 sq ft available after the first of the year. Three offices, conference room, copy room and large reception area. Very nice space and ample parking. Please call Skip at 505-400-2924.

Nob Hill Office SpaceOffices for rent in Law Firm with shared conference rooms and reception area. Call (505) 314-1310.

Will for Shirli A. DelgadoShirli A. Delgado passed away on September 17, 2014. It is believed that she had enlisted an attorney in this jurisdiction to draft her Last Will & Testament, which has not been found. Should you have any information regarding Ms. Delgado’s Will, please contact Eric D. Norvell of Norvell Werenko, P.A., at (505) 717-2857 or [email protected].

Miscellaneous

Law Office Furniture and Equipment Large desk, matching credenza, and leather executive chair. Seven large file cabinets. Fax, copier, scanner, printer and iMac computer. All in excellent condition, ready to outfit an attorney’s office. $2,950 Call 505-798-0114.

Member Benefits Resource Guide

Visit www.nmbar.org for the most current member benefits and resources.

• Attorney Resource Helpline

• Bar Bulletin• Bench & Bar Directory• Bridge the Gap

Mentorship Program

• eNews• Center for

Legal Education• Digital Print Center• Ethics Assistance• Fee Arbitration Program

• Lawyers and Judges Assistance Program

• New Mexico Lawyer• State Bar Center Meeting

Space

TM

We are “The Eagle”Virtual Conferencing. Pure and Simple.

620 Roma N.W.620 ROMA N.W., located within two blocks of the three downtown courts. Rent includes utilities (except phones), fax, internet, janito-rial 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 confer-ence rooms, a large waiting area, access to full library, receptionist to greet clients and take calls. Call 243-3751 for appointment to inspect.





When FirstImpressions Matter

Brought to you by the

Digital Print Center

• stationery • business cards • envelopes

Quality, full-color printing.Local service with fast turnaround.

DIGITAL PRINT CENTER

For more information, contact Marcia Ulibarri at 505-797-6058 or [email protected]

Ask about your member discount.

317 Commercial NE, 2ND FloorAlbuquerque, New Mexico 87102

TEL (505) 243-7848 • FAX (505) 764-0153Email: [email protected]

gcmlegal.com


TEL (505) 243-7848 • FAX (505) 764-0153Email: [email protected]

gcmlegal.com

Nathan H. MannNancy FranchiniHarriett J. Hickman

Nathan H. MannNancy FranchiniHarriett J. Hickman

David R. Gallagher(1913 - 2001)

J.E. CasadosOf Counsel

R. Thomas DaweOf Counsel

David R. Gallagher(1913 - 2001)

J.E. CasadosOf Counsel

R. Thomas DaweOf Counsel

Member, International Society of Primerus Law Firms Member, International Society of Primerus Law Firms

317 Commercial NE, 2ND Floor

Albuquerque, New Mexico 87102

T (505) 243-7848F (505) [email protected]

Harriett J. HickmanAttorney At Law


Member, International Society of Primerus Law Firms

Mary Ann R. BurmesterVirginia R. DuganTatiana D. Engelmann-Corp Jon A. FederRobert P. Matteucci Jr.Patrick L. McDanielThomas C. MontoyaDenise E. Ready

MAILING ADDRESS:PO BOX 3070

Albuquerque, NM 87190

PHYSICAL ADDRESS:City Place | Suite 2000

2155 Louisiana Blvd NEAlbuquerque, NM 87110

W. W. Atkinson Stephen J.E. Sprague(1910–1993) (1941–2003)

Telephone (505) 883-3070 | Fax (505) 889-3111www.AtkinsonKelsey.com

Robert P. Matteucci Jr.Robert P. Matteucci Jr.Patrick L. McDanielPatrick L. McDanielThomas C. MontoyaThomas C. MontoyaDenise E. ReadyDenise E. Ready

City Place | SuiteCity Place | Suite 2000 2000

CITY PLACE SUITE 20002155 LOUISIANA NE

P.O. BOX 3070

Albuquerque, New Mexico 87190 87190 87190

CITY PLACE | SUITE 20002155 LOUISIANA NEAlbuquerque, NM 87110P.O. BOX 3070 (87190-3070)

(505) 883-3070 Fax (505) 889-3111

e-mail: [email protected] web: www.atkinsonkelsey.com

Tatiana D. Engelmann attorney at law

Attorney at Law • Retired Chief District Court Judge(505) 321-4549 • [email protected]

TED C. BACA

601 Calle del Pajarito N.W., Albuquerque, New Mexico 87114

(505) 321-4549 • [email protected]

Attorney at Law

601 Calle del Pajarito N.W.

Albuquerque, New Mexico 87114

TED C. BACA

Attorney at Law

601 Calle del Pajarito N.W.Albuquerque, New Mexico 87114(505) 321-4549 • [email protected]

Retired Chief District Court Judge

TED C. BACA

We’re ready to print YOUR business package!





http://www.AtkinsonKelsey.com


http://www.atkinsonkelsey.com



Your 2015 State Bar licensing fees and certifications are due Dec. 31, 2014, and must be completed by Feb. 1, 2015,

to avoid non-compliance and related late fees.

Complete your annual licensing requirements at www.nmbar.org.

Payment by credit and debit card* and e-check are available.

If you have any questions, please call 505-797-6083 or email [email protected].

*Online payment by credit and debit card will incur a service charge.

State Bar of New Mexico2015 Licensing

Notification



Documents

December 17, 2014 • Volume 53, No. 51 - State Bar of New ... Bar Bulletin - December 17, 2014 - Volume 53, No. 51 CENTER FOR LEGAL EDUCATION All live seminars and video replays are