December 9, 2015 • Volume 54, No. 49 · by the State Bar of New Mexico, 5121 Masthead NE, Albuquerque, NM 87109-4367. Periodicals postage paid at Albuquerque, NM. Postmaster: Send

Reverendus, by Kat Livengood Dark Bird Studio, Santa Fe

Inside This Issue

December 9, 2015 • Volume 54, No. 49

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

New Mexico Supreme Court: Swearing-In Ceremony for Hon. Judith K. Nakamura ........... 4

Board of Legal Specialization: Comments Solicited ............................................... 4

2016 Licensing Notification .................................. 4

Greg J. Nibert to Chosen for 2015 NREEL Lawyer of the Year Award ............. 5

Participate in the Arturo Jaramillo Clerkship Program ................... 6

Clerk’s Certificates ................................................ 12

From the New Mexico Court of Appeals

2015-NMCA-085, No. 33,801: Segura v. J.W. Drilling, Inc. ............................ 14

2015-NMCA-086, No. 33,150: Bank v. Licha .................................................... 17

2015-NMCA-087, No. 32,958: State v. Gopin .................................................... 22

2 Bar Bulletin - December 9, 2015 - Volume 54, No. 49

CENTER FOR LEGAL EDUCATION

CLE Planner

Full course agendas available online. Register online at www.nmbar.org or call 505-797-6020.

Dec

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Ethicspalooza Redux—Winter 2015 EditionThis revived series of ethics courses taught by members of the Disciplinary Board of the New Mexico Supreme Court, Office of Disciplinary Counsel will provide concise, informative, practical and useful information for the ethical practice of law. Take one, two, three, four, five or all six!

Monday, Dec. 28, 2015 • 9 a.m.-5 p.m. State Bar Center, Albuquerque

1.0-6.0 EP

$38: Standard Fee/course$46: Webcast Fee/course

Dec

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Wednesday, Dec. 30, 2015 State Bar Center, Albuquerque

2.0 G

$99: Standard Fee$109: Webcast Fee

Dec

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Thought Now, a Lot Less Panic Later

Wednesday, Dec. 16, 2015 • 9-11 a.m. State Bar Center, Albuquerque

$99: Standard Fee: $89: Government, legal services attorneys, and Paralegal Division members $109: Webcast Fee

2.0 EP

Dec

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2.0 EPEffective Mentoring— Building Relationships to Bridge the Gap

Monday, Dec. 14, 2014 • 2-4 p.m. State Bar Center, Albuquerque

$99: Standard Fee$89: Government and legal services attorneys, and Paralegal Division members$109: Webcast Fee

Dec

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Presented by Stuart Teicher, Esq., the CLE ‘Performer’$145 Standard Fee/course$125 Government and legal services attorneys, and Paralegal Division members/course$159 Webcast Fee/course

What NASCAR, Jay-Z and the Jersey Shore Teach About Attorney Ethics (8:30-11:45 a.m.)

Talking ’Bout My Generation: Professional Responsibility Dilemmas Among Generations (12:30-3:45 p.m.)

Thursday, Dec. 17, 2015 • 8:30-11:45 a.m. and 12:30-3:45 p.m. State Bar Center, Albuquerque

3.0-6.0 EP

http://www.nmbar.org

Bar Bulletin - December 9, 2015 - Volume 54, No. 49 3

Notices .................................................................................................................................................................4Arturo Jaramillo Clerkship Program ...........................................................................................................6Legal Education Calendar ..............................................................................................................................7Writs of Certiorari ..............................................................................................................................................9Court of Appeals Opinions List ...................................................................................................................11Clerk’s Certificates ...........................................................................................................................................12Recent Rule-Making Activity .......................................................................................................................13Opinions

From the New Mexico Court of Appeals2015-NMCA-085, No. 33,801: Segura v. J.W. Drilling, Inc. ........................................................14

2015-NMCA-086, No. 33,150: Bank v. Licha ..................................................................................17

2015-NMCA-087, No. 32,958: State v. Gopin ................................................................................22

Advertising ........................................................................................................................................................27

State Bar Workshops December

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

10 Legal Resources for the Elderly Workshop 10–11:15 a.m., Presentation Noon–2 p.m., Clinics Placitas Senior Center, Placitas

January

6 Divorce Options Workshop 6 p.m., State Bar Center, Albuquerque

6 10 a.m.–1 p.m., Second Judicial District Court, Third Floor Conference Room Albuquerque

MeetingsDecember

9 Children’s Law Section BOD, Noon, Slate Street Café, Albuquerque

9 Taxation Section BOD, 11 a.m., teleconference

10 Business Law Section BOD, 4 p.m., teleconference

10 Public Law Section BOD, Noon, Montgomery & Andrews, Santa Fe

11 Prosecutors Section BOD, Noon, State Bar Center

15 Solo and Small Firm Section BOD, 11:30 a.m., State Bar Center

Table of Contents

Officers, Board of Bar Commissioners Mary Martha Chicoski, President J. Brent Moore, President-Elect Scotty A. Holloman, Vice President Dustin K. Hunter, Secretary-Treasurer Erika E. Anderson, Immediate Past President

Board of EditorsMaureen S. Moore, Chair Curtis HayesJamshid Askar Bruce HerrNicole L. Banks Andrew SefzikAlex Cotoia Mark StandridgeKristin J. Dalton Carolyn Wolf

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

©2015, State Bar of New Mexico. No part of this 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 Email: [email protected]. • www.nmbar.org

December 9, 2015, Vol. 54, No. 49

Cover Artist: Photographer Kat Livengood lives and works in the high desert of Santa Fe. When she’s not at her Canyon Road studio, she’s traveling all over the west with her partner, artist Kelly Moore, looking for wild horses and capturing images of wildlife and southwestern landscapes. Livengood is known for sensitively conveying spirit and soul in her work. To view more of her work, visit www.katlivengood.com.

mailto:[email protected]






http://www.katlivengood.com


NoticesProfessionalism Tipcourt news

New Mexico Supreme CourtSwearing-In Ceremony for Hon. Judith K. Nakamura Members of the legal community are invited to attend the swearing-in ceremony for Hon. Judith K. Nakamura as justice of the Supreme Court of New Mexico. The ceremony will take place at 4 p.m. on Dec. 11 at Sid Cutter Pilots’ Pavilion, 4900 Balloon Fiesta Parkway, NE, Albuquerque. A reception will immediately follow the ceremony in the Pavilion.

Compilation Commission Free CLE Opportunity The New Mexico Compilation Com-mission presents “Get It Right: Use Official Laws!” (2.0 G) from 9:30 to 11:50 a.m. on Dec. 15, at the State Bar Center, 5121 Masthead NE, Albuquerque. The free CLE will feature Justice Edward L. Chávez of the New Mexico Supreme Court. Attendees will learn the perils of free services and hear de-monstrative examples as to why and how the official New Mexico laws support and assist lawyers, judges, law clerks and paralegals in the delivery of legal services in New Mexico. Register by calling 505-827-4821.

Board of Legal SpecializationComments Solicited The following attorneys are applying for certification as a specialist in the areas of law identified. Application is made under the New Mexico Board of Legal Specialization, Rules 19-101 through 19-312 NMRA, which provide that the names of those seeking to qualify shall be released for publication. Further, attorneys and others are encour-aged to comment upon any of the applicant’s qualifications within 30 days after the publi-cation of this notice. Address comments to New Mexico Board of Legal Specialization, PO Box 93070, Albuquerque, NM 87199.

Appellate Practice Law Timothy Atler

Employment/Labor Law Justin Poore

Court of AppealsAnnouncement of Vacancy A vacancy on the Court of Appeals will exist as of Jan. 1, 2016, due to the retirement of Hon. Cynthia Fry, effective Dec. 31. The chambers for this position will be in Santa Fe. Inquiries regarding the details or as-signment of this judicial vacancy should be directed to the administrator of the Court.

With respect to parties, lawyers, jurors, and witnesses:

I will endeavor to work with other judges to foster a spirit of cooperation and collegiality.

Alfred Mathewson, chair of the Appellate Court Judicial Nominating Commission, in-vites applications for this position from law-yers who meet the statutory qualifications in Article VI, Section 28 of the New Mexico Constitution. Applications may be obtained from the Judicial Selection website: www.lawschool.unm.edu/judsel/application.php. The deadline for applications is 5 p.m., Jan. 19, 2016. Applicants seeking information regarding election or retention if appointed should contact the Bureau of Elections in the Office of the Secretary of State. The Appellate Court Judicial Nominating Commission will meet beginning at 9 a.m., Jan. 27, 2016, to interview applicants for the position at the Supreme Court Building in Santa Fe. The Commission meeting is open to the public and those who want to comment on any of the candidates will have an opportunity to be heard.

Bernalillo County Metropolitan CourtCourt Closure The Bernalillo County Metropolitan Court will close from 3–5 p.m. on Dec. 10 for the Court’s annual holiday celebration.

U.S. District Court for the District of New MexicoCourt Closure The U.S. District Court for the District of New Mexico will close at 1 p.m. on Dec. 24 through Dec. 25, 2015 for the Christ-mas holiday. Court will resume on Dec. 28. After-hours access to CM/ECF will remain available as regularly scheduled. Stay current with the U.S. District Court for the District of New Mexico by visiting www.nmd.uscourts.gov/.

U.S. Courts LibraryHoliday Open House The U.S. Courts Library will host a holi-day open house from 10 a.m. to 5 p.m. on Dec. 17. The Library is on the third floor of the Pete V. Domenici U.S. Courthouse, 333 Lomas Ave., Albuquerque. State and Federal Bar members are welcome to stop by to meet the staff, enjoy some cookies and punch, peruse the 30,000-plus volume collection

and discover how the Library can become an integral part of legal research teams. Usual hours of operation are 8 a.m.–noon and 1 to 5 p.m., Monday through Friday. For more information, call 505-348-2135.

state bar newsAttorney Support Groups• Dec. 14, 5:30 p.m. UNM School of Law, 1117 Stanford NE,

Albuquerque, King Room in the Law Li-brary. To increase access, teleconference participation is now available. Dial 1-866-640-4044 and enter code 7976003#.

• Dec. 21, 7:30 a.m. First United Methodist Church, 4th

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

• Jan. 4, 2016, 5:30 p.m. First United Methodist Church, 4th

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

For more information, contact Hilary Noskin, 505-449-7984 or Bill Stratvert, 505-242-6845.

2016 Budget DisclosureChallenge Expenditures Using the form provided on the last page of the budget disclosure document, submit written challenges on or before noon, Dec. 24, 2015, to: Executive Direc-tor Joe Conte, State Bar of New Mexico, PO Box 92860, Albuquerque, NM 87199. Challenges may also be delivered in person to the State Bar Center, 5121 Masthead NE, Albuquerque; or emailed to [email protected]. The budget disclosure docu-ment is available in its entirety on the State Bar website at www.nmbar.org.

2016 Licensing NotificationDue by Dec. 31 2016 State Bar licensing fees and certi-fications are due Dec. 31, 2015, and must be completed by Feb. 1, 2016, to avoid non-compliance and related late fees. Complete annual licensing requirements at www.nmbar.org. Payment by credit and debit card are available (will incur a service charge). For more information, call 505-797-6083 or email [email protected]. For help logging in or other website

http://www.lawschool.unm.edu/judsel/application.php

http://www.nmd.uscourts.gov/




troubleshooting, call 505-797-6086 or email [email protected]. Those who have already completed their licensing requirements should disregard this notice.

Appellate Practice SectionBrown Bag Lunch with Judge Linda M. Vanzi Judge Linda M. Vanzi will join the Appellate Practice Section and the Young Lawyers Division for their next brown bag lunch at noon, Dec. 11, at the State Bar Center in Albuquerque. These meetings are informal and attendees are encouraged to bring their own lunch. Space is limited, so email [email protected] to R.S.V.P.

Bankruptcy Law SectionWinter Social The Bankruptcy Law Section is host-ing a winter social event from 5 to 7 p.m., Dec. 16, at Soul and Vine, 109 Gold Ave. SW, Albuquerque. There will be buffet appetizers and one drink ticket available per attendee. The event is free to section members. No R.S.V.P. required.

Committee on Women and the Legal Profession2015 Justice Minzner Outstanding Advocacy for Women Award The Committee on Women and the Legal Profession is seeking nominations for the 2015 Justice Pamela B. Minzner Outstanding Advocacy for Women Award. Each year the Committee gives this award to a New Mexico attorney, male or female, who has distinguished themselves during the prior year by providing legal assistance to women who are underrepresented or underserved or by advocating for causes that will ultimately benefit and/or further the rights of women. To make a nomination, submit one–three letters describing the work and accomplishments of the nominee to Zoe Lees at [email protected] by Dec. 15. The award ceremony will be held mid-January of 2016. For more details about the award and previous recipients, visit www.nmbar.org > About Us > Committees.

Location Needed to Store Professional Clothing Closet Since 2010, the Committee has sponsored a Professional Clothing Closet which makes gently used professional attire available to members of the State Bar, law students, paralegals and clients. Due to an office move,

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 > for Members > Lawyers/Judges Assistance

the closet will need a new home in 2016. For more information or to volunteer space, contact Co-chair DeAnza Valencia Sapien at [email protected].

Indian Law SectionAchievement Award Winners Announced The Indian Law Section has selected Michael Gross and C. Bryant Rogers to receive the 2015 Achievement Award. They were chosen for their outstanding contribu-tions to the field of Indian law and work in advocating for Native American communi-ties and advancing the principles of tribal self-governance and self-determination. Presentation of the Achievement Awards will take place in early 2016.

Natural Resources, Energy and Environmental Law SectionGreg J. Nibert Chosen for 2015 Lawyer of the Year Award The Natural Resources, Energy and Environmental Section has chosen Greg J. Nibert to receive the 2015 “NREEL Lawyer of the Year” award. Nibert will receive the award at 11:43 a.m. on Dec. 18 at the State Bar Center during the Section’s annual CLE program. Nibert is a native son of Roswell where he has practiced with Hinkle Shanor LLP since 1983. He was selected for the award based of his service to oil and gas law, his devotion to the NREEL Section and the Rocky Mountain Mineral Law Founda-tion and his outstanding professionalism in the practice of law. He is a past chair of the NREEL Section. For more information about the award and Nibert, visit www.nmbar.org > About Us > Sections > NREEL.

unmLaw LibraryHours Through Dec. 12Building & Circulation Monday–Thursday 8 a.m.–8 p.m. Friday 8 a.m.–6 p.m. Saturday 10 a.m.–6 p.m. Sunday Noon–8 p.m.Reference Monday–Friday 9 a.m.–6 p.m. Saturday–Sunday Closed

School of Law Alumni AssociationThird Annual Holiday Gathering The UNM School of Law invites faculty, students, staff, alumni and friends to its

Call 1-800-368-2734 or visit www.geico.com. Mention your State Bar affiliation for

exclusive savings.

Member BenefitF e a t u r e d

Third Annual Holiday Gathering from 5:30–7:30 p.m., Dec. 9, at the School of Law in Albuquerque. For more information, visit www.lawschool.unm.edu/alumni/events/holiday.php.

other barsFirst Judicial District Bar AssociationDecember Holiday Party Join the First Judicial District Bar As-sociation for its annual holiday party, begin-ning at 6 p.m., Dec. 10, at the Draft Station, 60 E. San Francisco St., Santa Fe. Attendance is free and includes salad, pizza, beer, wine and good cheer. No R.S.V.P. necessary. Contact Lucas Conley at [email protected] or 505-986-2657 for more information.









http://www.geico

http://www.lawschool.unm.edu/alumni/


History and Mission:ARTURO JARAMILLO, the first Hispanic president of the State Bar of New Mexico, started the Summer Law Clerk Program in 1993. The program’s goal was to offer law students of diverse backgrounds the opportunity to clerk in legal settings that provide a foundation for the students’ law careers. Over the years, more than 200 first-year law students have participated in the program, working in the best legal environments in New Mexico. Mr. Jaramillo’s vision has come to fruition as the program has seen many of its past participants go on to become some of our legal community’s most influential attorneys, judges, and political leaders. The State Bar’s Committee on Diversity in the Legal Profession is focused on maintaining the strength of the program and its positive influence on the diversity of the New Mexico bar.

“... I forged relationships with some of the best attorneys in their respective practice areas, received extensive feedback on assignments, and had meaningful opportunities to contribute to important cases.”Frank Davis, Associate Attorney, Freedman, Boyd, Hollander, Goldberg, Urias & Ward, P.A.

“I am grateful for the many opportunities that I had as a result of the Summer Law Clerk Program. It was far more than just a summer job. I’m thrilled that, after all these years, the Clerkship Program is still going strong.”Lisa Ortega, Partner, Rodey, Dickason, Sloan, Akin & Robb, P.A.

“This program provided me a clear understanding of what employers were seeking when hiring associate attorneys and gave me additional real life attorney work experience ...”Mariposa Padilla-Sivage, Partner, Sutin Thayer & Browne, P.C.

How to Participate in the Arturo Jaramillo Clerkship Program:Ensuring that this important program continues depends on the commitment of New Mexico’s legal employers. If your firm or

government agency is interested in participating in the program, please contact any of the individuals below. The deadline to sign up to participate is January 15, 2015.

Mo ChavezChair, Arturo Jaramillo Clerkship Program

SaucedoChavez, P.C.(505) 338-3945

[email protected]

Denise ChanezCo-Chair, State Bar of New Mexico

Committee on Diversity in the Legal ProfessionRodey Law Firm(505) 765-5900

[email protected]

Leon HowardCo-Chair, State Bar of New Mexico

Committee on Diversity in the Legal ProfessionLaw Office of Lucero & Howard

(505) [email protected]

Arturo Jaramillo Clerkship Program





Legal EducationDecember

9 Planning with Single Member LLCs, Part 2 of 2

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

10 Trial Know-How Courtroom Skills from A to Z

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

10 Estate & Tax Planning for Estates Under the $10 Million Exemption Amount


11 Current Immigration Issues for the Criminal Defense Attorney

5.0 G, 2.0 EP Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

14 Effective Mentoring- Building Relationships to Bridge the Gap

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

14 Law Enforcement Interrogation Techniques and Tactics in Criminal Trials

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

14 Mistakes We’ve Made That We Hope You Can Avoid

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

14 26th Annual Appellate Practice Institute

5.0 G, 2.0 EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

14 Using Creative Legal Strategies to Protect Animals, People and the Planet


15 How to Become a Rock Star Lawyer, the Ethical Way

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

15 Avoiding Retirement Pitfalls (2015 Family Law Institute)


15 Construction Lien Law in New Mexico (2014)


15 Get It Right—Use the Official Laws 2.0 G New Mexico Compilation

Commission Albuquerque 505-827-4821 www.nmcompcomm.us

15–16 Drafting and Reviewing Commercial Leases, Parts 1–2


16 Law Practice Succession—A Little Thought Now, A Lot Less Panic Later


17 Talking ‘Bout My Generation: Professional Responsibility Dilemmas Among Generations


17 What NASCAR, Jay-Z and The Jersey Shore Teach About Attorney Ethics


17–18 Ethics & Conflicts with Clients, Parts 1–2

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

18 Navigating New Mexico Public Land Issues


18 Last Chance—The Best of the Best Seminar

3.7 G, 2.0 EP Albuquerque and Santa Fe New Mexico Trial Lawyers’

Foundation 505-243-6003 www.nmtla.org

21 Trials of the Century 5.0 G, 1.0 EP Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org













http://www.nmcompcomm.us







http://www.nmtla.org



Legal Education www.nmbar.org

21 Drafting Stock Purchase Agreements


22 2015 Health Law Symposium 4.5 G, 1.0 EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

22 Legal Writing-From Fiction to Fact: The Surprisingly Useful Things Legal Writers Can Learn from Fiction


22 Legal Writing-From Fiction to Fact: Writing the Facts and Arguments in Litigation


22 Practice Management, the Cloud and Your Firm (2014)


23 The Cybersleuth’s Guide to the Internet


28 Ethicspalooza Redux—Winter 2015 Edition

1.0–6.0 EP Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

30 2016 Legislative Preview 2.0 G Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

December











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. 35,603 State v. County of Valencia COA 33,903 11/19/15No. 35,602 State v. Astorga COA 32,374 11/19/15No. 35,599 Tafoya v. Stewart 12-501 11/19/15No. 35,598 Fenner v. N.M. Taxation and

Revenue Dept. COA 34,365 11/18/15No. 35,596 State v. Lucero COA 34,360 11/10/15No. 35,595 State v. Axtolis COA 33,664 11/10/15No. 35,594 State v. Hernandez COA 33,156 11/10/15No. 35,593 Quintana v. Hatch 12-501 11/06/15No. 35,591 State v. Anderson COA 32,663 11/06/15No. 35,588 Torrez v. State 12-501 11/04/15No. 35,587 State v. Vannatter COA 34,813 11/04/15No. 35,585 State v. Para COA 34,577 11/04/15No. 35, 584 State v. Hobbs COA 32,838 11/03/15No. 35,582 State v. Abeyta COA 33,485 11/02/15No. 35,581 Salgado v. Morris 12-501 11/02/15No. 35,586 Saldana v. Mercantel 12-501 10/30/15No. 35,580 State v. Cuevas COA 32,757 10/30/15No. 35,579 State v. Harper COA 34,697 10/30/15No. 35,578 State v. McDaniel COA 31,501 10/29/15No. 35,573 Greentree Solid Waste v.

County of Lincoln COA 33,628 10/28/15No. 35,576 Oakleaf v. Frawner 12-501 10/23/15No. 35,575 Thompson v. Frawner 12-501 10/23/15No. 35,555 Flores-Soto v. Wrigley 12-501 10/09/15No. 35,554 Rivers v. Heredia 12-501 10/09/15No. 35,540 Fausnaught v. State 12-501 10/02/15No. 35,523 McCoy v. Horton 12-501 09/23/15No. 35,522 Denham v. State 12-501 09/21/15No. 35,515 Saenz v.

Ranack Constructors COA 32,373 09/17/15No. 35,495 Stengel v. Roark 12-501 08/21/15No. 35,480 Ramirez v. Hatch 12-501 08/20/15No. 35,479 Johnson v. Hatch 12-501 08/17/15No. 35,474 State v. Ross COA 33,966 08/17/15No. 35,422 State v. Johnson 12-501 08/10/15No. 35,466 Garcia v. Wrigley 12-501 08/06/15No. 35,454 Alley v. State 12-501 07/29/15No. 35,440 Gonzales v. Franco 12-501 07/22/15No. 35,422 State v. Johnson 12-501 07/17/15No. 35,416 State v. Heredia COA 32,937 07/15/15No. 35,415 State v. McClain 12-501 07/15/15No. 35,399 Lopez v. State 12-501 07/09/15No. 35,374 Loughborough v. Garcia 12-501 06/23/15No. 35,375 Martinez v. State 12-501 06/22/15No. 35,372 Martinez v. State 12-501 06/22/15No. 35,370 Chavez v. Hatch 12-501 06/15/15No. 35,369 Serna v. State 12-501 06/15/15No. 35,353 Collins v. Garrett COA 34,368 06/12/15No. 35,335 Chavez v. Hatch 12-501 06/03/15No. 35,371 Pierce v. Nance 12-501 05/22/15No. 35,271 Cunningham v. State 12-501 05/06/15

No. 35,266 Guy v. N.M. Dept. of Corrections 12-501 04/30/15

No. 35,261 Trujillo v. Hickson 12-501 04/23/15No. 35,159 Jacobs v. Nance 12-501 03/12/15No. 35,106 Salomon v. Franco 12-501 02/04/15No. 35,097 Marrah v. Swisstack 12-501 01/26/15No. 35,099 Keller v. Horton 12-501 12/11/14No. 35,068 Jessen v. Franco 12-501 11/25/14No. 34,937 Pittman v.

N.M. Corrections Dept. 12-501 10/20/14No. 34,932 Gonzales v. Sanchez 12-501 10/16/14No. 34,907 Cantone v. Franco 12-501 09/11/14No. 34,680 Wing v. Janecka 12-501 07/14/14No. 34,777 State v. Dorais COA 32,235 07/02/14No. 34,790 Venie v. Velasquz COA 33,427 06/27/14No. 34,775 State v. Merhege COA 32,461 06/19/14No. 34,706 Camacho v. Sanchez 12-501 05/13/14No. 34,563 Benavidez v. State 12-501 02/25/14No. 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 11/28/12No. 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 07/12/12No. 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. 33,877 State v. Alvarez COA 31,987 12/06/12No. 33,930 State v. Rodriguez COA 30,938 01/18/13No. 34,363 Pielhau v. State Farm COA 31,899 11/15/13No. 34,274 State v. Nolen 12-501 11/20/13No. 34,443 Aragon v. State 12-501 02/14/14No. 34,522 Hobson v. Hatch 12-501 03/28/14No. 34,582 State v. Sanchez COA 32,862 04/11/14No. 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. 34,784 Silva v. Lovelace Health

Systems, Inc. COA 31,723 08/01/14No. 34,728 Martinez v. Bravo 12-501 10/10/14No. 34,812 Ruiz v. Stewart 12-501 10/10/14No. 34,830 State v. Mier COA 33,493 10/24/14No. 34,929 Freeman v. Love COA 32,542 12/19/14No. 35,063 State v. Carroll COA 32,909 01/26/15No. 35,016 State v. Baca COA 33,626 01/26/15No. 35,130 Progressive Ins. v. Vigil COA 32,171 03/23/15No. 35,101 Dalton v. Santander COA 33,136 03/23/15No. 35,148 El Castillo Retirement Residences v.

Martinez COA 31,701 04/03/15No. 35,198 Noice v. BNSF COA 31,935 05/11/15No. 35,183 State v. Tapia COA 32,934 05/11/15No. 35,145 State v. Benally COA 31,972 05/11/15No. 35,121 State v. Chakerian COA 32,872 05/11/15

Effective November 20, 2015


Writs of CertiorariNo. 35,116 State v. Martinez COA 32,516 05/11/15No. 34,949 State v. Chacon COA 33,748 05/11/15No. 35,298 State v. Holt COA 33,090 06/19/15No. 35,297 Montano v. Frezza COA 32,403 06/19/15No. 35,296 State v. Tsosie COA 34,351 06/19/15No. 35,286 Flores v. Herrera COA 32,693/33,413 06/19/15No. 35,255 State v. Tufts COA 33,419 06/19/15No. 35,249 Kipnis v. Jusbasche COA 33,821 06/19/15No. 35,248 AFSCME Council 18 v. Bernalillo

County Comm. COA 33,706 06/19/15No. 35,214 Montano v. Frezza COA 32,403 06/19/15No. 35,213 Hilgendorf v. Chen COA 33056 06/19/15No. 35,279 Gila Resource v. N.M. Water Quality Control

Comm. COA 33,238/33,237/33,245 07/13/15No. 35,289 NMAG v. N.M. Water Quality Control

Comm. COA 33,238/33,237/33,245 07/13/15No. 35,290 Olson v. N.M. Water Quality Control

Comm. COA 33,238/33,237/33,245 07/13/15No. 35,349 Phillips v. N.M. Taxation and

Revenue Dept. COA 33,586 07/17/15No. 35,302 Cahn v. Berryman COA 33,087 07/17/15No. 35,318 State v. Dunn COA 34,273 08/07/15No. 35,386 State v. Cordova COA 32,820 08/07/15No. 35,278 Smith v. Frawner 12-501 08/26/15No. 35,398 Armenta v.

A.S. Homer, Inc. COA 33,813 08/26/15No. 35,427 State v.

Mercer-Smith COA 31,941/28,294 08/26/15No. 35,446 State Engineer v.

Diamond K Bar Ranch COA 34,103 08/26/15No. 35,451 State v. Garcia COA 33,249 08/26/15No. 35,438 Rodriguez v.

Brand West Dairy COA 33,104/33,675 08/31/15No. 35,426 Rodriguez v.

Brand West Dairy COA 33,675/33,104 08/31/15No. 35,499 Romero v.

Ladlow Transit Services COA 33,032 09/25/15No. 35,456 Haynes v. Presbyterian

Healthcare Services COA 34,489 09/25/15No. 35,437 State v. Tafoya COA 34,218 09/25/15No. 35,395 State v. Bailey COA 32,521 09/25/15

Certiorari Granted and Submitted to the Court:

(Submission Date = date of oralargument or briefs-only submission) Submission DateNo. 33,969 Safeway, Inc. v.

Rooter 2000 Plumbing COA 30,196 08/28/13No. 33,884 Acosta v. Shell Western Exploration

and Production, Inc. COA 29,502 10/28/13No. 34,146 Madrid v.

Brinker Restaurant COA 31,244 12/09/13No. 34,093 Cordova v. Cline COA 30,546 01/15/14No. 34,287 Hamaatsa v.

Pueblo of San Felipe COA 31,297 03/26/14No. 34,613 Ramirez v. State COA 31,820 12/17/14No. 34,798 State v. Maestas COA 31,666 03/25/15No. 34,630 State v. Ochoa COA 31,243 04/13/15No. 34,789 Tran v. Bennett COA 32,677 04/13/15No. 34,997 T.H. McElvain Oil & Gas v.

Benson COA 32,666 08/24/15

No. 34,993 T.H. McElvain Oil & Gas v. Benson COA 32,666 08/24/15

No. 34,726 Deutsche Bank v. Johnston COA 31,503 08/24/15

No. 34,826 State v. Trammel COA 31,097 08/26/15No. 34,866 State v. Yazzie COA 32,476 08/26/15No. 35,049 State v. Surratt COA 32,881 10/13/15No. 35,035 State v. Stephenson COA 31,273 10/15/15No. 35,478 Morris v. Brandenburg COA 33,630 10/26/15No. 34,946 State v. Kuykendall COA 32,612 11/12/15No. 34,945 State v. Kuykendall COA 32,612 11/12/15

Opinion on Writ of Certiorari:

Date Opinion FiledNo. 34,549 State v. Nichols COA 30,783 11/19/15No. 34,546 N.M. Dept. Workforce Solutions v.

Garduno COA 32,026 11/19/15No. 34,974 Moses v. Skandera COA 33,002 11/12/15No. 34,637 State v. Serros COA 31,975 11/12/15No. 34,548 State v. Davis COA 28,219 10/19/15

Petition for Writ of Certiorari Denied:

Date Order FiledNo. 35,568 State v. Aranzola COA 32,505 11/17/15No. 35,567 State v. Ruiz COA 32,992 11/17/15No. 35,562 Scott v. New COA 34,556 11/17/15No. 33,979 State v. Suskiewich COA 33,979 11/17/15No. 34,881 Paz v. Horton 12-501 11/17/15No. 35,559 State v. Shelby COA 34,682 11/10/15No. 35,511 Brinsfield v. Hatch 12-501 11/10/15No. 35,558 State v. Hernandez COA 33,525 11/10/15No. 35,341 Martin v. State 12-501 11/10/15No. 35,269 Peterson v. Ortiz 12-501 11/10/15No. 35,217 Hernandez v. Horton 12-501 11/10/15No. 35,506 Alonso v. Hatch 12-501 11/05/15No. 35,403 Blackwell v. Horton 12-501 11/10/15No. 35,552 Spurlock v. N.M. Board of

Examiners for Architects COA 34,833 11/05/15No. 35,550 State v. Ben COA 33,921 11/05/15No. 35,546 State v. Lefthand COA 33,396 11/05/15No. 35,545 State v. Lemanski COA 33,846 11/05/15No. 35,544 State v. Trujeque COA 34,519 11/05/15No. 35,452 Kirk v. Mercantel 12-501 11/05/15No. 35,411 Tayler v. State 12-501 11/05/15No. 35,542 City of Roswell v. Marin COA 34,286 10/23/15No. 35,539 State v. Herrera COA 33,255 10/23/15No. 35,538 State v. Gallegos COA 34,689 10/23/15No. 35,537 State v, Reyes COA 34,700 10/23/15No. 35,535 State v. Herrera COA 33,078/33,255 10/23/15No. 35,532 Woody Investments v.

Sovereign Eagle COA 32,830 10/23/15No. 35,526 State v. Mitchell COA 34,573 10/21/15No. 35,525 State v. Ashley COA 32,974 10/21/15No. 35,520 Deutsche Bank v. Huerta COA 34,337 10/21/15No. 35,519 State v. York COA 33,462 10/21/15No. 35,518 State v. Yanke COA 34,474 10/21/15No. 35,412 Peterson v. LeMaster 12-501 10/21/15No. 35,368 Griego v. Horton 12-501 10/21/15


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

Mark Reynolds, Chief Clerk New Mexico Court of Appeals PO Box 2008 • Santa Fe, NM 87504-2008 • 505-827-4925

Effective November 27, 2015Published Opinions

No. 33405 9th Jud Dist Curry CV-08-298 A BUSTOS v CITY OF CLOVIS (reverse and remand) 11/23/2015No. 33725 1st Jud Dist Santa Fe CV-12-702, R DILLS v NM HEART INSTITUTE (affirm) 11/23/2015

Unublished Opinions

No. 32856 1st Jud Dist Rio Arriba CR-10-210, STATE v S RIVERA (affirm) 11/23/2015No. 33871 1st Jud Dist Rio Arriba CR-10-209, STATE v E SANCHEZ (affirm) 11/23/2015No. 34439 9th Jud Dist Curry CR-11-369, STATE v M DEPPERMAN (affirm) 11/23/2015No. 32875 6th Jud Dist Hidalgo CR-13-44, STATE v G BEJARANO (affirm) 11/23/2015No. 34336 13th Jud Dist Valencia CV-12-436, JP MORGAN v S GOMEZ (affirm) 11/23/2015No. 32973 3rd Jud Dist Dona Ana CV-10-1360, F VILLALOBOS v N VILLALOBOS (affirm in part, reverse in part) 11/24/2015No. 34266 3rd Jud Dist Dona Ana CR-13-1003, STATE v M SOLIS (affirm) 11/24/2015No. 34430 2nd Jud Dist Bernalillo CV-14-4074, AFSCME v EXPO NEW MEXICO (affirm) 11/25/2015No. 34767 WCA-14-59237, E GONZALES v PAPPADEAUX (affirm) 11/25/2015

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

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


Clerk’s Certificate of Reinstatement to

Active Status

As of November 13, 2015:Matthew K. BishopWestern Environmental Law Center103 Reeder’s AlleyHelena, MT 59601406-443-3501406-443-6305 (fax)[email protected]

As of November 20, 2015:Kathryn Grusauskas263 West End RoadSouth Orange, NJ [email protected]

As of November 13, 2015:David Matthew Overstreet2801 Sunrise AvenueAlamogordo, NM [email protected]

Clerk’s Certificate of Admission

On November 17, 2015:James J. EufingerFaber and Brand LLCPO Box 10110Columbia, MO 65205888-233-3141573-442-1072 ([email protected]

On November 24, 2015:Mark Raymond HaydenN.M. General Services DepartmentState Purchasing Division1100 S. St. Francis Drive, Room 2016Santa Fe, NM 87505505-827-2331505-827-2484 (fax)[email protected]

On November 24, 2015:Allen L. WilliamsonSimpson Boyd Powers & WilliamsonPO Box 1375105 N. State Street, Suite BDecatur, TX 76234940-627-8308940-627-8092 (fax)[email protected]

Clerk’s Certificate of Withdrawal

Effective November 14, 2015:Jean Constance MooreSutin, Thayer & Browne. PCPO Box 1945Albuquerque, NM 87103505-883-2500







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

Effective December 2, 2015

Pending Proposed Rule Changes Open for Comment:

Comment Deadline

None to report at this time.

Recently Approved Rule Changes Since Release of 2015 NMRA:

For 2014 year-end rule amendments that became effective Decem-ber 31, 2014, and which now appear in the 2015 NMRA, please see the November 5, 2014, issue of the Bar Bulletin or visit the New Mexico Compilation Commission’s website at http://www.nmcompcomm.us/nmrules/NMRuleSets.aspx.

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

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http://www.nmcompcomm.us


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

From the New Mexico Supreme Court and Court of Appeals

Certiorari Denied, August 14, 2015, No. 35,417


Opinion Number: 2015-NMCA-085

JULIAN SEGURA, CHRISTOPHER DIXON, and KEVIN J. MEYN, in their own behalf and in behalf of similarly situated persons,

Plaintiffs-Appellants,v.

J.W. DRILLING, INC., a New Mexico corporation,Defendant-Appellee

Docket No. 33,801 (filed June 25, 2015)

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTYRAYMOND L. ROMERO, District Judge

C. BARRY CRUTCHFIELDTEMPLETON & CRUTCHFIELD, P.C.

Lovington, New Mexico

ROBERT E. RIOJASRIOJAS LAW FIRM, P.C.

El Paso, Texas

MICHAEL T. MILLIGANEl Paso, Texasfor Appellants

CHARLES J. VIGIL JEFFREY L. LOWRY

RODEY, DICKASON, SLOAN, AKIN & ROBB, P.A.

Albuquerque, New Mexico

KENNETH B. WILSONHENNIGHAUSEN & OLSEN, L.L.P.

Roswell, New Mexicofor Appellee

Opinion

Michael D. Bustamante, Judge{1} Julian Segura, Christopher Dixon, and Kevin J. Meyn (Workers), in their own behalf and on behalf of similarly situated persons, filed a complaint alleging that J.W. Drilling, Inc. (Employer), failed to pay them for overtime wages for the time spent traveling from their homes to Employer’s job sites. Employer moved for summary judgment on the ground that such time was not compensable under New Mexico’s Minimum Wage Act (MWA), NMSA 1978, §§ 50-4-19 to -30 (1955, as amended through 2013). Workers appeal the district court’s grant of summary judgment in favor of Employer. We affirm.BACKGROUND{2} Workers are former employees of Em-ployer, a contractor that performed oil field drilling and related work in the Permian Basin in southeastern New Mexico and west Texas. Workers were paid hourly wages as non-exempt employees. Based

in Artesia, New Mexico, Employer hired employees there and “dispatch[ed] them on day trips requiring travel to and from the job sites of at least one hour per day.”{3} Workers brought suit against Employ-er seeking unpaid overtime compensation, liquidated damages, injunctive relief, and attorney fees for themselves and other employees similarly situated under the MWA. Workers’ complaint alleged that “[Employer’s] method of operation made travel a part of their employees’ duties and a term of their employment relation-ship” and that Employer “engaged in a continuing course of conduct . . . pursuant to which they only paid employees from the arrival time to the departure time at the remote work locations, even though travel time caused the employees to work more than 40 hours per week.” Workers asserted that they were “ ‘traveling employ-ees’ within the meaning of New Mexico common law[.]” Workers asserted that under Section 50-4-22(D) of the MWA, they “had a right to compensation at one and one-half times their regular[] hourly

rates for all hours worked in excess of 40 hours” during a seven day period. See Sec-tion 50-4-22(D) (“An employee shall not be required to work more than forty hours in any week of seven days, unless the em-ployee is paid one and one-half times the employee’s regular hourly rate of pay for all hours worked in excess of forty hours.”). Since Employer had not paid Workers for the time spent traveling to the job sites, they asserted that Employer is “liable to them for their overtime compensation and also the mandatory liquidated damages” provided for in the MWA.{4} Employer moved for summary judg-ment. See Rule 1-056 NMRA. For purposes of the motion, Employer accepted the basic facts set out in Workers’ complaint. After a hearing, the district court granted the motion and dismissed the complaint. This appeal followed.DISCUSSION{5} “When a party actually admits, for purposes of the summary judgment mo-tion, the veracity of the allegations in the complaint, a reviewing court should con-sider the facts pleaded as undisputed and determine if a basis is present to decide the issues as a matter of law.” GCM, Inc. v. Kentucky Cent. Life Ins. Co., 1997-NMSC-052, ¶ 13, 124 N.M. 186, 947 P.2d 143 (alteration, internal quotation marks, and citation omitted). Generally, “New Mexico courts . . . view summary judgment with disfavor, preferring a trial on the merits.” Romero v. Philip Morris Inc., 2010-NMSC-035, ¶ 8, 148 N.M. 713, 242 P.3d 280.{6} The parties agree that the essential legal question posed by the complaint is “whether travel time is compensable under the [MWA].” Because Workers’ complaint states that the travel at issue is “travel to and from the job sites,” and their briefs do not mention travel between job sites, we understand their argument to be focused on travel from their homes to one job site and back each day. Workers make two ar-guments. First, they argue that the district court erred in relying on case law constru-ing a federal statute to construe the MWA. Second, they argue under the MWA their travel time to the job sites is compensable when it exceeds the “normal commute” time. We address these arguments in turn.{7} In their first argument, Workers con-trast the MWA with its federal counterpart, the Fair Labor Standards Act (FLSA). 29 U.S.C. §§ 201 to 219 (1938, as amended through 2012). They note that a portion

http://www.nmcompcomm.us/


http://www.nmcompcomm.us/Advance Opinionsof the FLSA, the Portal-to-Portal Act, excludes from compensable time the time spent traveling from home to the place of an employee’s “principal activity.” See 29 U.S.C § 254(a). Specifically, the Portal-to-Portal Act provides that

Except as provided in subsection (b) of this section, no employer shall be subject to any liability or punishment under the [FLSA] . . . on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensa-tion, for . . . (1) walking, riding, or traveling to and from the actual place of per-formance of the principal activity or activities which such employee is employed to perform, and (2) activities which are prelimi-nary to or postliminary to said principal activity or activities[.]

Id.{8} Workers argue that the district court erred “by engrafting onto the [MWA] the [Portal-to-Portal Act] making all travel non-compensable, even round trips nearly equal to a day of work[.]” They maintain that the MWA, passed eight years after the Portal-to-Portal Act, has no similar express exclusion, and thus the district court erred in relying on federal case law interpreting the Portal-to-Portal Act.{9} Workers’ claims are based entirely on the MWA. Although several New Mexico cases refer to federal law as persuasive au-thority in interpreting the MWA, in those cases the MWA and the FLSA had similar provisions. See, e.g., Garcia v. Am. Furni-ture Co., 1984-NMCA-090, ¶ 13, 101 N.M. 785, 689 P.2d 934 (stating that because the definitions in the MWA “are similar to definitions in the Fair Labor Standards Act of 1938. . . . it is appropriate to look to decisions of federal courts determining the meaning of ‘employ’ in the federal statute, and to consider those federal decisions as persuasive authority in deciding the meaning of ‘employ’ in the New Mexico statute”); Sinclaire v. Elderhostel, Inc., 2012-NMCA-100, ¶ 6, 287 P.3d 978 (discussing the FLSA and the MWA provisions related to the definition of a work week). How-ever, when the language of the MWA and the FLSA differ, we treat federal case law differently. In New Mexico Department of Labor v. Echostar Communications Corp., for example, this Court declined to rely on cases interpreting the FLSA in part because the language in the MWA and FLSA dif-

fered. 2006-NMCA-047, ¶ 12, 139 N.M. 493, 134 P.3d 780. Here, the exclusions in the Portal-to-Portal Act are completely absent from the MWA. There being no analogue in the MWA, the interpretations of the Portal-to-Portal Act in case law are unhelpful. Thus, to the extent the district court relied on federal law interpreting the Portal-to-Portal Act to decide this case, we agree that it erred. Federal law does not answer the issue presented by this case.{10} We turn to Workers’ argument that their travel time is compensable under the MWA. Workers first argue that employees like them are entitled to compensation for their travel time because they are “travel-ing employees.” The “traveling employee” concept to which Workers refer is derived from workers’ compensation law. Under that body of law, employees generally are not considered within the course of their employment when they are on their way to work or returning home from work. See NMSA 1978, § 52-1-19 (1987). This is known as the “going and coming rule.” Ramirez v. Dawson Prod. Partners, Inc., 2000-NMCA-011, ¶ 7, 128 N.M. 601, 995 P.2d 1043. However, when travel is an integral part of the employee’s duties and a benefit to the employer, the employee will be considered within the course of employment the entire time he or she is traveling. Id. ¶ 11. This is known as the “traveling employee” exception to the “go-ing and coming rule.” Id. Workers urged the district court and now urge this Court to import the traveling employee excep-tion from workers’ compensation law into the context of wage and hour law. They note that the rationale for the traveling employee exception is that the travel is oc-casioned by and solely for the benefit of the employer. They argue that their travel here is similarly for the benefit of the employer and, therefore, should be compensable.{11} We decline to apply the traveling employee concept in this context. Workers compensation law is “sui generis” and New Mexico courts have repeatedly declined to mingle its principles with those in other areas of law. For instance, in Lessard v. Coronado Paint & Decorating Center, Inc., this Court stated that although “similar principles may support [applying the go-ing and coming rule] in [the context of workers’ compensation and tort law],” the going and coming rule in workers’ com-pensation law was inapplicable to scope of employment analyses in tort law because “the policies served by the two areas of law differ, and application of the rule in

each context has produced analyses that differ from each other.” 2007-NMCA-122, ¶ 9, 142 N.M. 583, 168 P.3d 155. Similarly, this Court declined to import principles related to traveling employees from work-ers’ compensation law into vicarious li-ability analyses, concluding that “workers’ compensation cases involving ‘traveling employees’ are not helpful to our analysis of common-law vicarious liability.” Ovecka v. Burlington N. Santa Fe Ry. Co., 2008-NMCA-140, ¶ 13, 145 N.M. 113, 194 P.3d 728; see also Rivera v. N.M. Highway & Transp. Dep’t, 1993-NMCA-057, ¶¶ 14-15, 115 N.M. 562, 855 P.2d 136 (stating that the “rationale for allowing workers’ compensation benefits for accidents aris-ing from horseplay is unique to workers’ compensation cases” and that the “ratio-nale does not apply outside the workers’ compensation context”); Aragon v. Furr’s, Inc., 1991-NMCA-080, ¶ 4, 112 N.M. 396, 815 P.2d 1186 (stating that statutes of limi-tation related to other causes of action were irrelevant because workers’ compensation law is “sui generis”); Wampler Foods, Inc. v. Workers’ Comp. Div., 602 S.E.2d 805, 817-18 (W. Va. 2004) (stating that workers’ compensation law “stands alone from all other areas of the law, causing decisions rendered in the workers’ compensation realm to be almost wholly unusable in any other area of the law, and vice-versa”); cf. Olson v. Trinity Lodge No. 282, A. F. & A. M., 32 N.W.2d 255, 257 (Minn. 1948) (“Compensation acts are sui generis, and care must be taken not to defeat their purpose by applying, through long judicial habit, concepts belonging to fundamen-tally different fields of litigation.”).{12} In a more general argument, Work-ers ask this Court to hold that “all em-ployee travel beyond a normal commute [i]s compensable, regardless of who owns the vehicle.” As support, Workers direct us to the Employee Commuting Flexibility Act (ECFA), a 1996 amendment to the Portal-to-Portal Act, which states that

the use of an employer’s vehicle for travel by an employee and ac-tivities performed by an employee which are incidental to the use of such vehicle for commuting shall not be considered part of the employee’s principal activities if the use of such vehicle for travel is within the normal commuting area for the employer’s business or establishment and the use of the employer’s vehicle is subject to an agreement on the part of the



http://www.nmcompcomm.us/Advance Opinionsemployer and the employee or representative of such employee.

29 U.S.C. § 254(a) (emphasis added); Small Business Job Protection Act of 1996, Pub. L. No. 104-188, §§ 2101-2103, 110 Stat. 1755. They also cite a U.S. Department of Labor (DOL) opinion letter issued in 1999 interpreting the ECFA, in which the DOL addressed whether “time spent in driving [in the employer’s vehicle] between the [employee’s] home and the job site [would] constitute hours worked.” Opinion Letter Fair Labor Standards Act (FLSA), 1999 WL 1002360, at **1-2. In the letter, the DOL stated that

where a[n employee’s] commute to the first job site in the morning takes four hours, we would con-sider the greater portion of travel time compensable under the principles described in 29 CFR 785.37. That rule allows a portion of the total commute time to be considered non-compensable home-to-work travel. If the em-ployer treated three of the four hours as compensable travel, we would not question such practice.

Id. at *2. Workers argue that the MWA should be interpreted consistently with the DOL’s interpretation of the ECFA.{13} The problem for us with this argu-ment is that it is based on explicit language in the federal statute. As already discussed, there simply is no similar language in the MWA. Instead, the MWA is silent on travel time, whether within a “normal commute” or otherwise. See, e.g., § 50-4-21 (not defining “travel time,” “hours worked,” or “work” in the definitions); Section 50-4-22 (not addressing travel time).{14} Although Workers argue that the absence of language similar to the Portal-to-Portal Act in the MWA indicates that travel time is compensable under the

MWA, Workers also appear to acknowl-edge the general rule that commuting time to and from a job site is not compensable absent an agreement to the contrary. Even the United States Supreme Court cases they cite in their favor distinguish between travel from home to the employer’s prop-erty and travel once on the property. See Tenn. Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 599 (1944) (stating that the travel at issue took place on the employer’s property and “[bore] no rela-tion whatever to [the employees’] needs or to the distance between their homes and the mines.”), superseded by statute as stated in Ford v. Houston Indep. Sch. Dist., ___ F. Supp. 3d ___, 2015 WL 1246780; Jewell Ridge Coal Corp. v. Local No. 6167, United Mine Workers of Am., 325 U.S. 161, 166 (1945) (distinguishing “[t]hose who are forced to travel in underground mines in order to earn their livelihood” from “the ordinary workman on his way to work”); Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 691 (1946) (stating that “the walking time [on the employer’s property, which was at issue] differed vitally from the time spent in traveling from workers’ homes to the factory”); see also 1 Wage & Hour Law § 6:38 (2015) (“Ordinary travel from home to work does not require compensation. This is still true even if the employer’s worksite is a moving site.” (foot-note omitted)). Since the MWA is silent on this issue, Workers are, in essence, asking this Court to fashion out of whole cloth a new scheme, similar to the ECFA, that alters the general rule and declares some commuting time compensable.{15} Under our rules of construction, “[i]f the Legislature is silent on an issue, we look at the overall structure and function of the statute, as well as the public policy embod-ied in the statute.” Delfino v. Griffo, 2011-NMSC-015, ¶ 12, 150 N.M. 97, 257 P.3d 917.

The purpose of the MWA is “to safeguard existing minimum wage and overtime com-pensation standards which are adequate to maintain the health, efficiency and general well-being of workers against the unfair competition of wage and hours standards which do not provide adequate standards of living.” Section 50-4-19. Holding that some portion of employees’ travel time is compensable would likely further this goal. But to do what Workers ask would require us to resolve a number of policy questions as to the scope of compensable time. The effect of such an effort—in the face of legislative silence—would be to amend the current statutory language. This we are loath to do. “ ‘Courts must construe statutes as they find them and may not amend or change them under the guise of construction.’ ” Jones v. Holiday Inn Express, 2014-NMCA-082, ¶ 19, 331 P.3d 992 (quoting 82 C.J.S. Statutes § 370 (2014)(; Gonzalez v. Performance Painting, Inc., 2013-NMSC-021, ¶ 53, 303 P.3d 802 (Daniels, J., specially concurring) (stating that “judges are not legislators”); Martinez v. Sedillo, 2005-NMCA-029, ¶ 7, 137 N.M. 103, 107 P.3d 543 (“We will not rewrite a statute.”); City of Albuquerque v. Sanchez, 1970-NMCA-023, ¶ 5, 81 N.M. 272, 466 P.2d 118 (“[T]his is a situation which calls for legislative therapy and not judicial sur-gery.”), overruled on other grounds by State v. Ball, 1986-NMSC-030, ¶ 39, 104 N.M. 176, 718 P.2d 686.CONCLUSION{16} For the foregoing reasons, we affirm the district court’s grant of summary judg-ment to Employer.{17} IT IS SO ORDERED.

MICHAEL D. BUSTAMANTE, Judge

WE CONCUR:MICHAEL E. VIGIL, Chief JudgeRODERICK T. KENNEDY, Judge



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



FLAGSTAR BANK, FSB,Plaintiff-Appellee,

v.JONATHAN K. LICHA, and PAMELA S. MACKENZIE-LICHA,

husband and wife; et al.,Defendants-Appellants


APPEAL FROM THE DISTRICT COURT OF SOCORRO COUNTYEDMUND H. KASE III, District Judge

MICHELLE K. OSTRYEJUSTIN R. SAWYER

SUTIN, THAYER & BROWNE, P.C.Albuquerque, New Mexico

for Appellee

ERIC N. ORTIZJOSEPH C. GONZALES

JEAN Y. CHUERIC ORTIZ LAW

Albuquerque, New Mexicofor Appellants

Opinion

Timothy L. Garcia, Judge{1} We have now considered and partially grant Defendants’ motion for rehearing. As a result, we withdraw our opinion filed on February 18, 2015, and substitute the fol-lowing in its place. Defendants Jonathan K. Licha and Pamela S. MacKenzie-Licha (the Lichas), appeal the district court’s order granting summary judgment for foreclo-sure in favor of Plaintiff Flagstar Bank, FSB (Flagstar). The Lichas primarily assert on appeal that issues of fact concerning Flagstar’s standing to enforce the note and mortgage precluded summary judgment. We disagree with the Lichas and affirm.BACKGROUNDA. The Loan and the District Court

Proceedings{2} On March 4, 2009, the Lichas ex-ecuted a promissory note to Lending Solu-tions, Inc. (Lending Solutions) to borrow $181,878. As security for the loan, the Lichas signed a mortgage contract with Mortgage Electronic Registration Systems, Inc. (MERS), as the nominee for Lend-ing Solutions. On July 18, 2011, Flagstar filed a foreclosure complaint against the Lichas, alleging that Flagstar was the cur-rent holder of the note and the mortgage and that the Lichas were in default. The copy of the note that Flagstar attached to its complaint contained an indorsement signed by Ryan P. Tally, vice president of

Lending Solutions, along with the words, “PAY TO ORDER OF: FLAGSTAR BANK, FSB WITHOUT RECOURSE.” Flagstar also attached to its complaint a copy of the mortgage with MERS and a copy of a mortgage assignment from MERS to Flagstar dated April 29, 2011.{3} The Lichas filed a pro se motion asking the district court to dismiss the complaint on the basis that the complaint had failed to state a claim upon which relief could be granted. The district court summarily denied the motion. Flagstar filed a motion for summary judgment, which it later withdrew to give the Lichas opportunity to answer the complaint. The Lichas then retained counsel, who filed an answer to the complaint on their behalf. The answer asserted, among other things, that Flagstar lacked standing to bring the complaint be-cause it was not “the holder in due course” and because it was “not the contractual party with respect to the transaction.”{4} Flagstar renewed its summary judg-ment motion, asserting that it was “en-titled to enforce the [n]ote and [m]ortgage” because the note and mortgage were “transferred and assigned to [Flag-star].” In support of this assertion, Flagstar referred to a copy of the MERS assignment that it had attached to its complaint and it attached an affidavit of Lisa Jones, an employee of Flagstar. In her affidavit, Ms. Jones stated that “[t]he original [n]ote is maintained in a vault at Flagstar[,]” that “Flagstar’s vault document management

system” indicates “that Flagstar held possession of the original [n]ote when it commenced the instant foreclosure ac-tion,” that Flagstar continues to “hold[] possession of the original [n]ote[,]” and that she “reviewed the copy of the [n]ote . . . and ha[s] confirmed that it is a true and correct copy of the original [n]ote that is maintained at Flagstar.” Attached to this affidavit were copies of the note containing the indorsement to Flagstar, the mortgage, and the MERS assignment, which appear to be identical to the documents that Flagstar attached to its complaint.{5} In response to Flagstar’s renewed sum-mary judgment motion, the Lichas made four arguments relevant to this appeal. Their first argument concerned Flagstar’s standing to foreclose. They argued that there were factual disputes about whether Lending Solutions authorized MERS to assign the mortgage to Flagstar, whether Flagstar gave any consideration for the assignment of the note and mortgage, and whether Flagstar was the current owner of the mortgage. In support of their as-sertion that Flagstar was not the owner of the mortgage, the Lichas submitted an affidavit of Vanessa DeNiro, an attorney who performed a “loan audit” for the Lichas. Ms. DeNiro stated in her affidavit that, based on her research, Ginnie Mae was the owner of the mortgage loan. Her affidavit also contained numerous legal arguments and conclusions of law.{6} Second, the Lichas argued that they should have been afforded an opportunity to conduct additional discovery on the issue of whether Flagstar had standing to foreclose. Third, they argued that the district court should sanction Flagstar for “bad faith discovery tactics” because it stated in its responses to the Lichas’ interrogatories that the “subject loan” was “owned by Flagstar” when the “true owner is [Ginnie Mae].” Fourth, they argued that “there was a potential violation of [the] Home Loan Protection Act.”{7} In its reply, Flagstar moved to strike the DeNiro affidavit because, among other reasons, the affidavit contained statements that were “inadmissible hearsay, violate the best evidence rule[,] or are inadmis-sible legal conclusions.” Flagstar argued that the Lichas did not have standing to challenge the consideration paid for the assignment of the mortgage to Flagstar. Flagstar also attached an affidavit and an exhibit to its reply showing an undated endorsement in blank by Flagstar on the back of the note.



http://www.nmcompcomm.us/Advance Opinions{8} Without holding a hearing, the district court entered an order granting summary judgment in favor of Flagstar, in which it concluded that Flagstar was entitled to enforce the note and mortgage. In the same order, it struck the DeNiro affidavit and denied the Lichas’ request for addi-tional discovery, but it did not discuss the reasons for these decisions. It later denied the Lichas’ motion to reconsider.B. Arguments on Appeal{9} All but one of the arguments set forth in the Lichas’ brief in chief were preserved in the district court. The unpreserved argument asserts that the Jones affidavit attached to Flagstar’s summary judgment motion did not show that Ms. Jones had “personal knowledge” concerning her statement that Flagstar possessed the origi-nal note on the date it filed for foreclosure because she relied on Flagstar’s computer system for this information. Flagstar cor-rectly counters that the Lichas did not raise this argument in the district court. Thus, we do not address this issue because the Lichas do not argue, and we do not find, that we should apply the public interest exception to the rule that appellate courts do not address unpreserved arguments. See Rule 12-216 NMRA; O’Neel v.USAA Ins. Co., 2002-NMCA-028, ¶ 32, 131 N.M. 630, 41 P.3d 356 (declining to consider unpreserved arguments on appeal where there was no basis to apply the general public interest exception).{10} The five preserved arguments that the Lichas renew in their brief in chief are whether: (1) There were disputed is-sues of material fact regarding whether Flagstar was the holder of the note and the mortgage; (2) The Lichas have standing to challenge the validity of the assign-ment of the note and mortgage; (3) The DeNiro affidavit should not have been stricken; (4) The district court should have allowed the Lichas more time to conduct additional discovery; and (5) The district court should have held a hearing before it decided to strike the DeNiro affidavit, deny the Lichas’ request for bad faith discovery sanctions against Flagstar, and grant sum-mary judgment in favor of Flagstar.{11} The Lichas did not renew various other issues in their brief in chief that they raised in the district court. However, because Flagstar raises two of these ad-ditional issues in its answer brief and the Lichas address them in their reply brief, we shall discuss them in this opinion. See Brashear v. Packers, 1994-NMSC-108, ¶ 7, 118 N.M. 581, 883 P.2d 1278 (“[I]f an

appellee raises an argument not addressed by the appellant in its opening brief, the appellant may reply.” (alteration, internal quotation marks, and citation omitted)). These two additional issues are whether MERS was authorized to assign the mort-gage to Flagstar and whether the Lichas’ contention that the original lender “may have” violated the Home Loan Protection Act precludes summary judgment in favor of Flagstar.DISCUSSIONA. Standard of Review{12} We review a district court’s order granting summary judgment de novo. Summers v. Ardent Health Servs., L.L.C., 2011-NMSC-017, ¶ 10, 150 N.M. 123, 257 P.3d 943. “Summary judgment is appropri-ate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.” Montgomery v. Lomos Altos, Inc., 2007-NMSC-002, ¶ 16, 141 N.M. 21, 150 P.3d 971 (internal quotation marks and citation omitted). “On review, we examine the whole record for any evidence that places a genuine issue of material fact in dispute, and we view the facts in a light most favorable to the party opposing the motion and draw all reasonable inferences in support of a trial on the merits[.]” Handmaker v. Henney, 1999-NMSC-043, ¶ 18, 128 N.M. 328, 992 P.2d 879 (internal quotation marks and citation omitted). The party moving for summary judgment has the burden “to establish that no genuine issue of material fact exists for trial and that the movant is entitled to judgment as a matter of law.” C & H Constr. & Paving Co. v. Citizens Bank, 1979-NMCA-077, ¶ 9, 93 N.M. 150, 597 P.2d 1190. However, “[t]he party op-posing a motion for summary judgment cannot defeat the motion . . . by the bare contention that an issue of fact exists, but must show that evidence is available which would justify a trial of the issue.” Spears v. Canon de Carnue Land Grant, 1969-NMSC-163, ¶ 12, 80 N.M. 766, 461 P.2d 415; see Guest v. Berardinelli, 2008-NMCA-144, ¶ 35, 145 N.M. 186, 195 P.3d 353 (“General assertions of the existence of a triable issue are insufficient to overcome summary judgment on appeal.”).B. Standing{13} Standing is a jurisdictional prereq-uisite that “may not be waived and may be raised at any stage of the proceedings, even sua sponte by the appellate court.” Bank of N.Y. v. Romero, 2014-NMSC-007, ¶ 15, 320 P.3d 1 (internal quotation marks and citation omitted). Plaintiffs who bring

foreclosure actions must demonstrate that they had the right to enforce the note and mortgage at the time that they filed the foreclosure suit. Id. ¶ 17.1. Right to Enforce the Note{14} To establish the right to enforce a ne-gotiable instrument such as a note, a plain-tiff must show that it is: (1) the “holder” of the instrument; (2) a “nonholder” who possesses the instrument and has the rights of a holder; or (3) a person who does not possess the instrument, but is nonetheless entitled to enforce it pursuant to certain provisions of the Uniform Commercial Code (UCC). NMSA 1978, § 55-3-301 (1992); see Romero, 2014-NMSC-007, ¶ 20. The UCC defines the “holder” of the instrument, in pertinent part, as “the per-son in possession of a negotiable instru-ment that is payable either to bearer or to an identified person that is the person in possession[.]” NMSA 1978, § 55-1-201(b)(21)(A) (2005); see Romero, 2014-NMSC-007, ¶ 21. A third party who is not the payee of the instrument “must prove both physical possession and the right to enforcement through either a proper indorsement or a transfer by negotiation.” Romero, 2014-NMSC-007, ¶ 21. The UCC recognizes two kinds of indorsements for the purpose of negotiating an instrument: a blank indorsement and a special indorse-ment. Id. ¶¶ 24-25. “A blank indorsement . . . does not identify a person to whom the instrument is payable[,] but instead makes it payable to anyone who holds it as bearer paper.” Id. ¶ 24 (citing NMSA 1978, § 55-3-205(b) (1992)). “[A] special indorsement ‘identifies a person to whom it makes the instrument payable.’” Romero, 2014-NMSC-007, ¶ 25 (quoting Section 55-3-205(a)). “When specially indorsed, an instrument becomes payable to the identified person and may be negotiated only by the indorsement of that person.” Romero, 2014-NMSC-007, ¶ 25 (internal quotation marks and citation omitted).{15} In this case, because the payee of the note was Lending Solutions, we must determine whether Flagstar provided suffi-cient evidence of how it became the holder by either an indorsement or transfer. See id. ¶ 21. Because the note that Flagstar attached to its complaint was specially indorsed by Lending Solutions, identifying Flagstar as the person to whom the note was payable, we conclude that Flagstar provided sufficient evidence that it was the holder of the note with the right to enforce it under the UCC. See id.; § 55-3-301; § 55-1-201(b)(21)(A); § 55-3-205(a).



http://www.nmcompcomm.us/Advance Opinions{16} During the summary judgment proceedings, Flagstar submitted a copy of the back page of the note showing that Flagstar had indorsed the note in blank. The Lichas argue that Flagstar’s blank indorsement on the back of the note was a “conflicting indorsement[]” that cre-ated an issue of fact precluding summary judgment. We disagree. Flagstar’s blank indorsement is consistent with Lending Solution’s special indorsement to Flagstar. Because Flagstar has shown that it is the holder of the note due to Lending Solu-tions’ special indorsement, the effect of Flagstar’s blank indorsement is to allow Flagstar to negotiate, or transfer, the note to another person. See NMSA 1978, § 55-3-201(a) (1992) (defining “[n]egotiation” as “a transfer of possession, whether vol-untary or involuntary, of an instrument by a person other than the issuer to a person who thereby becomes its holder”); Casarez v. Garcia, 1983-NMCA-013, ¶ 16, 99 N.M. 508, 660 P.2d 598 (recognizing that when a note is specially indorsed to a transferee, that transferee may “further negotiate[]” the note “only by his indorsement”). The Lichas have not claimed that there is evidence that Flagstar, after indorsing the note in blank, had transferred the note to another person. Without such evidence, Flagstar’s blank indorsement on the note it continues to hold has no effect on the issues we address in this appeal.2. Right to Foreclose the Mortgage{17} Our Supreme Court has recently held that where a plaintiff has not es-tablished the right to enforce the note, it cannot foreclose the mortgage, even if evidence shows that the mortgage was assigned to the plaintiff. See Romero, 2014-NMSC-007, ¶¶ 34-35. Moreover, the Court was clear that where MERS’ role was that of a “nominee for Lender and Lender’s succes-sors and assigns[,] . . . MERS could assign the mortgage but lacked any authority to assign the . . . note.” Id. at ¶ 35. Here, like Romero, MERS’ role as shown on the mort-gage attached to the complaint was that of “nominee for Lender, as hereinafter de-fined, and Lender’s successors and assigns.” The mortgage defined “Lender” as “LEND-ING SOLUTIONS, INC.” Therefore, “[a]s a nominee for [Lending Solutions] on the mortgage contract, MERS could assign the mortgage[,]” id. ¶ 35, which it did by virtue of the recorded assignment attached to Flagstar’s complaint. Therefore, the Lichas’ bare assertion that MERS lacked authority to assign the mortgage, without further factual development distinguishing

MERS’ role in this case from MERS’ role in Romero, was not a material issue that precluded summary judgment. See Romero v. Philip Morris, Inc., 2009-NMCA-022, ¶ 12, 145 N.M. 658, 203 P.3d 873 (“An issue of fact is ‘material’ if the existence (or non-existence) of the fact is of consequence un-der the substantive rules of law governing the parties’ dispute.”), rev’d on other grounds by 2010-NMSC-035, 148 N.M. 713, 242 P.3d 280. As a result, we reject the Lichas’ argument that Flagstar was not entitled to summary judgment to foreclose its inter-est in the mortgage due to MERS role as a nominee in the assignment if the mortgage.3. Consideration{18} We reject the Lichas’ argument that the question of whether Flagstar gave con-sideration for the note and mortgage was a material issue that precluded summary judgment. The Lichas cite no authority and this Court has found no authority that requires the holder of a note, as the plaintiff in a foreclosure action, to es-tablish that it gave consideration to the original lender for the right to enforce the note and mortgage. Although New Mexico courts have not directly addressed this issue, we agree with the weight of author-ity that concludes that persons may not raise the defense of lack of consideration where they were not parties to the transfer because such defense is available only to the parties to the transfer. See 59 C.J.S. Mortgages § 412 (2009) (“An assignment of a mortgage must be supported by a good and valuable consideration in order to be valid as between the parties. However, the want of consideration is not available as a defense to one who was not a party to the assignment and hence was not thereby injured[.]” (emphasis added) (footnotes omitted)); Reeves v. ReconTrust Co., 846 F. Supp. 2d 1149, 1164 (D. Or. 2012) (con-cluding that the defense of lack of con-sideration is not available to third-party debtors to void the mortgage assignment to MERS). Therefore, because the Lichas were not parties to the transfer of the note and mortgage from Lending Solutions to Flagstar, we conclude that the Lichas’ lack-of-consideration argument does not raise an issue of material fact precluding summary judgment.C. Exclusion of the DeNiro Affidavit{19} We review a district court’s deci-sion to strike an affidavit at the summary judgment stage of the proceedings for an abuse of discretion. See Akins v. United Steelworkers of Am., 2009-NMCA-051, ¶ 40, 146 N.M. 237, 208 P.3d 457 (“We

review a district court’s decision to admit or exclude evidence for abuse of discre-tion.”), aff ’d 2010-NMSC-031, 148 N.M. 442, 237 P.3d 744; Mitchael v. Intracorp, Inc., 179 F.3d 847, 854-55 (10th Cir. 1999) (“Like other evidentiary rulings, we re-view a district court’s decision to exclude evidence at the summary judgment stage for abuse of discretion.” (internal quota-tion marks and citation omitted)). In doing so, we “presume[] that the district court [wa]s correct” and “the burden is on the appellant to clearly demonstrate the district court’s error.” Akins, 2009-NMCA-051, ¶ 40. Affidavits supporting or opposing a summary judgment motion

shall be made on personal knowl-edge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to tes-tify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

Rule 1-056(E) NMRA. At the summary judgment stage, a district court “must consider evidence even if the form of the evidence, such as a deposition, would be inadmissible at trial,” but “it cannot consider evidence if the substance of the evidence is inadmissible at trial.” Wilde v. Westland Dev. Co., 2010-NMCA-085, ¶ 28, 148 N.M. 627, 241 P.3d 628 (first emphasis added). For instance, “hearsay . . . is not generally admissible at trial, so affidavits or depositions containing hearsay are not sufficient evidence of a fact.” Id. (internal quotation marks and citation omitted). Furthermore, opinions of witnesses concerning questions of law are inadmis-sible at trial. See Beal v. S. Union Gas Co., 1960-NMSC-019, ¶¶ 29-30, 66 N.M. 424, 349 P.2d 337.{20} Ms. DeNiro stated in her affidavit that she had performed a “Mortgage Secu-ritization Analysis and Legal Chain of Title Report” based on her research and analysis of “documents[]” and “county records[,]” and her use of “internet tools and com-mercial and government websites.” Her affidavit contained four parts: a “securiti-zation analysis”; a “chain of title report”; a “supplementary legal analysis”; and a conclusion. In her securitization analysis, she stated that her research revealed that “[t]he [m]ortgage associated with [the sub-ject loan] is a mortgage back [sic] security . . . guaranteed by [Ginnie Mae] (Ginnie Mae II RPB Trust/Pool 2009).” (Emphasis



http://www.nmcompcomm.us/Advance Opinionsomitted.) She did not identify or include copies of any of the documents, county records, or website pages that she relied on in making this determination. She then stated that:

By [Ginnie Mae] purchasing the said [m]ortgage [l]oan and sell-ing certificates as shares of the [Ginnie Mae] RPB Pool 2009[] to investors based on the placement of the loan, [Ginnie Mae] was exercising rights of ownership over the said [m]ortgage [l]oan[, and b]y exercising such rights of ownership, [Ginnie Mae] made a claim of ownership of the said [m]ortgage [l]oan.

In the chain of title report, Ms. DeNiro stated that she did not find the assignment of the mortgage from MERS to Flagstar in the county records. She then concluded that “[t]here is no legal evidence that Flag-star is the owner of the said [m]ortgage” or “the [n]ote” and that Flagstar was “at most, a mere servicer of the [m]ortgage.” The remainder of this part of the affidavit, and the parts identified as supplementary legal analysis and conclusion do not con-tain facts, but rather legal arguments and legal conclusions.{21} The Lichas contend that the district court should not have excluded the DeNiro affidavit because it established a genuine issue of material fact as to the ownership of the note and mortgage. We reject this contention.{22} Most of the statements that Ms. DeNiro made in her affidavit concerned legal conclusions that would have been in-admissible at trial, and were thus properly excluded. See Beal, 1960-NMSC-019, ¶¶ 29-30 (concluding that expert testimony was properly stricken at trial because it is not the function of any witness, expert or non-expert, to state an opinion on a mat-ter of law); Wilde, 2010-NMCA-085, ¶ 28 (stating that our Supreme Court has made clear that a court cannot consider evidence at the summary judgment stage “if the substance of the evidence is inadmissible at trial”). The only statement in her affidavit concerning a disputed factual issue about Flagstar’s standing was that “[t]he [m]ort-gage associated with [the subject loan] is a mortgage back [sic] security . . . guaranteed by [Ginnie Mae] (Ginnie Mae II RPB Trust/Pool 2009)[,]” which resulted in Ginnie Mae having “rights of ownership [over] the said [m]ortgage [l]oan.” (Emphasis omitted.) This statement was properly ex-cluded for two reasons. First, Ms. DeNiro

claimed that she relied on “documents[]” and “county records[,]” and her use of “in-ternet tools and commercial and govern-ment websites” in making her statements, but none of these sources were identified or attached to the affidavit, in violation of Rule 1-056(E). See Rule 1-056(E) (“Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.”); cf. State v. Lopez, 2009-NMCA-044, ¶¶ 14, 26, 146 N.M. 98, 206 P.3d 1003 (holding that, pursuant to the best evidence rule, trial testimony relying on documents was inadmissible without submission of such documents or an explanation as to why the documents were unavailable). Second, Ms. DeNiro’s statements are vague and only appear to reference the ownership of the mortgage—not the note. Because we have concluded that the right to foreclose the mortgage automatically follows the right to enforce the note, and Flagstar established that it had the right to enforce the note, Ms. DeNiro’s statements about ownership of the mortgage were not material to the issue of Flagstar’s right to file this foreclo-sure action. See Romero, 2009-NMCA-022, ¶ 12. Therefore, we conclude that the district court did not abuse its discretion in striking the DeNiro affidavit. See Akins, 2009-NMCA-051, ¶ 40; see also Mitchael, 179 F.3d at 854.D. The Lichas’ Request for Further

Discovery{23} The Lichas argue that the district court should have granted its request for more time to conduct discovery before it granted Flagstar’s summary judgment motion. We disagree.{24} “[W]e review a district court’s decision limiting discovery solely on the grounds of abuse of discretion.” Sanchez v. Church of Scientology, 1993-NMSC-034, ¶ 17, 115 N.M. 660, 857 P.2d 771. Gener-ally, “a court should not grant summary judgment before a party has completed discovery.” Sun Country Sav. Bank of N.M., F.S.B. v. McDowell, 1989-NMSC-043, ¶ 27, 108 N.M. 528, 775 P.2d 730. In deter-mining whether summary judgment was premature based upon discovery issues, we consider the following factors: (1) whether the nonmovant sought a continuance dur-ing the summary judgment motion stage to complete its discovery; (2) whether, between the time the summary judgment motion was filed and the grant of summary judgment, the nonmovant had sufficient time to obtain discovery; (3) whether the nonmovant submitted an affidavit

in opposition to the summary judgment motion “contain[ing] a statement of the time required to complete the discovery, the particular evidence needed, where the particular evidence was located and the methods used to obtain the evidence[]”; and (4) whether the party who moved for summary judgment “gave an appropriate response to a discovery request from the nonmoving party.” Id.{25} Applying these factors, the record shows that the Lichas propounded inter-rogatories and requests for production upon Flagstar on September 7, 2012. Flagstar responded to these requests on October 31, 2012 and supplemented its responses on March 6, 2013. The record shows that during the four-month period between the time they received Flagstar’s initial responses and the time that Flagstar filed its summary judgment motion, the Lichas made no formal objection to the manner in which Flagstar responded to their requests, nor did they seek additional discovery from Flagstar. Only after Flag-star moved for summary judgment did the Lichas contend in their opposition to the motion that “[f]urther discovery is needed to determine whether MERS had proper authorization to act on behalf of Lending Solutions” when it assigned the mortgage to Flagstar; that Flagstar “continuously refused to provide requested original loan documents or consideration or value given in exchange for the [a]ssignment of [m]ortgage”; that the Lichas needed time to “inspect the . . . loan application and all disclosures made or not made to them” and the “full mortgage file” so that they could “determine whether the loan is void or voidable due to fraud or misrepresen-tation”; and that Flagstar “has refused to provide true discovery responses” because its statement that “the loan had never been securitized” was “false.” The Lichas did not submit an affidavit with their opposition detailing the time required to complete their discovery or the methods needed to obtain the evidence they sought.{26} During the next three-month inter-val between the time that Flagstar moved for summary judgment and the district court’s order granting it, the Lichas did not propound any further discovery requests upon Flagstar, they did not move to com-pel Flagstar to produce any documents they claimed that Flagstar improperly withheld, and they did not move for a stay or continuance of the summary judgment proceedings. Furthermore, the Lichas do not dispute Flagstar’s claim that it provided



http://www.nmcompcomm.us/Advance Opinionsthem with an “opportunity to inspect the original note but the Lichas failed to do so.” For these reasons, we conclude that the Lichas did not act reasonably in pursuing the deficiencies claimed to exist in discov-ery and the district court did not abuse its discretion in denying the Lichas more time to pursue discovery. See Sanchez,1993-NMSC-034, ¶ 17; Sun Country Sav. Bank of N.M., F.S.B., 1989-NMSC-043, ¶ 29 (affirming summary judgment where nonmovant “did not act reasonably in discovering . . . information” because it did not file a motion to compel, did not seek a continuance of the summary judgment proceedings, did not attempt to conduct additional discovery while the summary judgment motion was pending, and did not include an affidavit elaborating on the time and methods needed to complete discovery).E. Home Loan Protection Act{27} Although the Lichas do not raise an issue in their brief in chief concerning the Home Loan Protection Act (HLPA), NMSA 1978, §§ 58-21A-1 to -14 (2003, as amended through 2009), Flagstar argues in its answer brief that it is not subject to the HLPA claims that were made by the Lichas during the summary judgment proceed-ings. The Lichas counter in their reply brief that Flagstar is subject to the HLPA, that the Lichas “presented a factual dispute as to whether [Flagstar] may have violated the HLPA[,]” and that this factual dispute precluded summary judgment. However, the Lichas do not identify or discuss the nature of the factual dispute they claim exists. Instead, they merely state that more discovery is required to determine whether there was an HLPA violation. Because the Lichas do not identify an actual factual issue with regard to the HLPA in their appellate briefs, and because we have con-cluded that they did not act reasonably in pursuing discovery prior to the summary

judgment ruling, we need not further ad-dress the legal question of whether Flagstar violated the HLPA. See Montgomery, 2007-NMSC-002, ¶ 16. (“Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.” (internal quotation marks and citation omitted)); Spears, 1969-NMSC-163, ¶ 12 (“The party opposing a motion for sum-mary judgment cannot defeat the motion . . . by the bare contention that an issue of fact exists, but must show that evidence is available[.]”); Guest, 2008-NMCA-144, ¶ 35 (“General assertions of the existence of a triable issue are insufficient to overcome summary judgment on appeal.”).F. Hearing{28} Finally, the Lichas claim that the district court erred when it decided the summary judgment motion without a hearing. We reject this contention because we are aware of no authority, and the Lichas have cited none, that requires a district court to hold a hearing on a sum-mary judgment motion. See Curry v. Great Nw. Ins. Co., 2014-NMCA-031, ¶ 28, 320 P.3d 482 (“Where a party cites no authority to support an argument, we may assume no such authority exists.”), cert. denied, 2014-NMCERT-003, 324 P.3d 375. We have previously recognized that “[i]n con-sidering a motion for summary judgment, the [district] court . . . is not required to[] hold an oral hearing. . . . when the oppos-ing party has had an adequate opportunity to respond to [the] movant’s arguments through the briefing process.” Nat’l Excess Ins. Co. v. Bingham, 1987-NMCA-109, ¶ 9, 106 N.M. 325, 742 P.2d 537. The Lichas filed a written response in opposition to Flagstar’s summary judgment motion and have not claimed that they did not have an opportunity to respond to Flagstar’s arguments during the briefing process. Therefore, we conclude that the district

court did not err when it granted summary judgment without a hearing.{29} The Lichas also argue that the district court should have held a hearing on their request for discovery sanctions against Flagstar because: statements in the DeNiro affidavit contradicted some of Flagstar’s responses to the Lichas’ discov-ery requests; a hearing would have allowed the district court to determine whether Ms. DeNiro’s statements were correct and Flagstar’s statements were false; and if Flagstar’s statements were false, the dis-trict court could have granted the Lichas’ request for bad faith discovery sanctions. We reject this argument for three reasons. First, we have already concluded that the statements in the DeNiro affidavit were inadmissible and the district court properly struck them. Second, even if the district court had considered the DeNiro affidavit, the statements in the affidavit that contradict Flagstar’s right to foreclose the mortgage fail as a matter of law because Flagstar established it had the right to enforce the note. Third, the Lichas cite no authority, and we have found none, that requires a district court to hold a hearing on an unresolved request for discovery sanctions for the separate purpose of weighing the credibility of individuals who have made conflicting statements during the discovery process. See Curry, 2014-NMCA-031, ¶ 28.CONCLUSION{30} For the reasons set forth herein, we affirm the district court’s order granting summary judgment in favor of Flagstar.{31} IT IS SO ORDERED.

TIMOTHY L. GARCIA, Judge

WE CONCUR:MICHAEL E. VIGIL, Chief JudgeM. MONICA ZAMORA, Judge



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



UTTI ATHERTON, LAURA JARAMILLO, JOHN DOE 1-99, and JANE DOE 1-99,

Plaintiffs-Appellees,and

STATE OF NEW MEXICO, ex rel., HECTOR H. BALDERAS, Attorney General,Plaintiff-Appellee,

v.MICHAEL J. GOPIN, an unlicensed New Mexico attorney

d/b/a LAW OFFICES OF MICHAEL J. GOPIN,Defendant-Appellant


APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTYJAMES T. MARTIN, District Judge

ROBERT N. (TITO) MEYERLas Cruces, New Mexico

KENNETH L. BEALLas Cruces, New Mexico

for Appellees

HECTOR H. BALDERASAttorney General

Santa Fe, New MexicoTONYA NOONAN HERRING

Special Assistant Attorney GeneralREBECCA C. BRANCH

Special Assistant Attorney GeneralISMAEL L. CAMACHO

Special Assistant Attorney GeneralAlbuquerque, New Mexico

for Appellee Attorney General

CAREN I. FRIEDMANSanta Fe, New Mexico

ROBERT J. GORENCEGORENCE & OLIVEROS, P.C.Albuquerque, New Mexico

for Appellant

Opinion

Michael D. Bustamante, Judge{1} After a ne exeat bond is set, may a district court exercise its discretion to increase the amount of the bond? This is a matter of first impression in New Mexico. To resolve the issue, we examine the pa-rameters of the writ of ne exeat, a little-used writ with origins dating as far back as the tenth century. Concluding that the district court did not abuse its discretion, we affirm.BACKGROUND{2} The present matter stems from a 2011 judgment against Michael J. Gopin (Defendant) for violations of the New

Mexico Unfair Practices Act (UPA), NMSA 1978, §§ 57-12-1 to -26 (1967, as amended through 2009). “The judgment included treble damage awards in favor of twelve individual [p]laintiffs totaling $216,222.57, $757,358.56 in favor of the New Mexico Attorney General as restitu-tion for 110 consumers, and $1,570,000 in civil penalties in favor of the Attorney General.” Atherton v. Gopin (Atherton I), 2015-NMCA-003, ¶ 2, 340 P.3d 630, cert. granted, 2014-NMCERT-012, 344 P.3d 988. The details leading to the judgment are set out in this Court’s Opinion in the appeal of that judgment. Id. ¶¶ 5-17. Because those details are not critical to the issue before us on this appeal, we do not repeat them here. It suffices to say that after

entry of summary judgment in Atherton I, the district court issued a writ of ne exeat, the subsequent alteration of which is the only issue before us in this appeal.{3} The Attorney General filed an ap-plication for writ of ne exeat on January 3, 2012, less than a month after entry of the judgment. The application requested the district court to enter a writ “without advance notice to Defendant,” barring Defendant from leaving the State of New Mexico, removing any assets from New Mexico, and “hiding, spending, or dis-posing of his personal assets, or the assets of the business, pending further order of [the district c]ourt.” A hearing was held on January 5, 2012. At the hearing, the district court stated that “the Attorney General has established good cause to believe that [Defendant] may be about to remove as-sets from the jurisdiction of the [district] court.” It ordered Defendant to post a ne exeat bond in the amount of $100,000, which was based on the sale price of a building Defendant owned in New Mexico (the Solano property).{4} Defendant moved for reconsideration of the ne exeat bond order, but failed to appear at the hearing on the motion. Fol-lowing the hearing, the district court en-tered findings of fact. Specifically, it found that (1) “[t]he evidence before the [c]ourt establishes that Defendant has engaged in . . . complex financial transaction[s] for the purpose of preventing collection of this judgment[;]” (2) “Defendant has dissipated assets during the pendency of this case, including the sale of [the So-lano] property located in Las Cruces, New Mexico[;]” and (3) “[a]t the January 5, 2012[,] hearing, Defendant testified under oath that he would attend all future hear-ings in this case and would not flee the jurisdiction.” It also found that “[m]ore than [thirty] days has passed since the [c]ourt ordered [D]efendant to post a bond with the [c]ourt.” Based on these and other findings, the district court concluded that “a bond in the amount of $500,000, which represents approximately 25% of the total judgment entered against [D]efendant, is appropriate to prevent further dissipation of assets within the jurisdiction of the [c]ourt and to secure [D]efendant’s appearance at all future proceedings.”{5} On March 20, 2012, the district court issued a temporary restraining order enjoining Defendant from, among other things, removing any assets owned by him personally or owned by the law offices



http://www.nmcompcomm.us/Advance Opinionsof Michael J. Gopin from New Mexico. Defendant then failed to appear for a March 27, 2012, hearing and the district court issued an order to show cause why he should not be held in contempt for failure to appear. The show cause hear-ing was scheduled for May 16, 2012. Meanwhile, the ne exeat bond order for a bond of $500,000 was issued on April 24, 2012. Defendant failed to post the bond and failed to appear at the May 16, 2012, hearing. The district court then entered a bench warrant for his arrest and increased the bond to $1,000,000 ($500,000 for the ne exeat bond and $500,000 for failure to appear at the May 16, 2012, hearing). Defendant was arrested and put in jail. Pursuant to Defendant’s emergency mo-tion, the district court quashed the bench warrant and reduced the ne exeat bond to $250,000. Defendant paid that sum into the court registry.{6} Defendant does not appeal any of the foregoing rulings or orders. Rather, Defendant only appeals an order increas-ing the amount of the ne exeat bond. This order followed a February 27, 2013, mo-tion for increase by the Attorney General in which the Attorney General alleged that Defendant “continue[d] to dissipate his assets from New Mexico.” Defendant filed responsive pleadings, and a hearing on the motion was held on April 30, 2013. The district court found that “Defendant’s [r]eal [e]state [c]ontract [for sale of the Solano property] is an asset that Defendant continues to dissipate from the [S]tate of New Mexico” and ordered Defendant to post an additional $120,000 as part of the ne exeat bond.DISCUSSIONThe Writ of Ne Exeat{7} Section 57-12-17 of the UPA permits the attorney general to move for a writ of ne exeat “[w]henever the attorney general has reasonable belief that any . . . person [violating the UPA] is about to remove himself from the [S]tate of New Mexico, or is about to remove his property or assets from the [S]tate of New Mexico.” Using the writ, “the court may forbid any such person from leaving the [S]tate of New Mexico, or removing his property or assets from the [S]tate of New Mexico until a determination of the issues [al-leged under the UPA] has been made.” Id. There are no cases in New Mexico construing the ne exeat provisions in the UPA. See §§ 57-12-17 to -20. Thus the questions presented here are matters of first impression.

{8} Although the parties appear to agree that the district court’s authority to issue the writ arises from the UPA, “the writ of ne exeat was not created, nor are its func-tions defined by statute.” Nixon v. Nixon, 158 N.W.2d 919, 922 (Wis. 1968). Hence, “[a]s to the general functions of the writ and the grounds upon which it may issue, resort must be had to principles of the common law.” Id.{9} The writ of ne exeat has ancient origins. “The forerunner of this writ in ancient common law appears to have been a writ de securitatem invenienda which was designed to prevent members of the clergy in England from departing the realm to visit the Papal See. It was thus limited in use to ecclesiastics only.” Nat’l Auto. & Cas. Ins. Co. v. Queck, 405 P.2d 905, 909 (Ariz. Ct. App. 1965). “Sometime between the reign of John (1199-1216), and Edward I (1272-1307), . . . the writ of ne exeat regno was first used as a high prerogative writ . . . applied to subjects and foreigners alike, to prevent them from leaving the kingdom.” Id. By the seventeenth century, use of the writ of ne exeat had evolved to encompass enforcement of private rights. Id. at 910; see also Beveridge v. Beveridge, 507 A.2d 502, 504 (Conn. App. Ct. 1986).{10} As used today, “[t]he writ of ne exeat is an equitable remedy in the nature of bail at common law. It is directed to the sheriff, commanding him to commit the party to prison until he gives security not to leave the jurisdiction without permission of the court.” The Writ of Ne Exeat, 29 Harv. L. Rev. 206, 206 (1915) (footnotes omitted). “The purposes of the writ are to insure compliance with orders and decrees of court and to enable the court to retain jurisdiction of the party against whom it is issued.” 65 C.J.S. Ne Exeat § 2 (2015); Te-dards v. Auty, 557 A.2d 1030, 1034 (N.J. Su-per. Ct. App. Div. 1989) (“The purpose of a writ of ne exeat is to compel a defendant’s physical appearance in court when re-quired.”). There are “two requirements for the issuance of the writ: (1) a threatened departure of the defendant [or removal of property] from the jurisdiction; and (2) a resulting defeat of the court’s power to give effective in personam relief due to its loss of control over the defendant’s person [or property].” United States v. Robbins, 235 F. Supp. 353, 356 (E.D. Ark. 1964); see § 57-12-17; 57 Am. Jur. 2d Ne Exeat § 9 (2015) (“[W]here the removal of property would defeat the purpose of a ne exeat writ, the order in the writ may detain property, as well as the person.”).

{11} These requirements circumscribe the use of a writ of ne exeat: “In the absence of [a threat to abscond], the writ may not be used as a form[] of coercing payment of a debt, no matter how just, nor as a form[] of punishment, no matter how deserved.” Tedards, 557 A.2d at 1034. Moreover, because “[t]he writ of ne exeat operates in restraint of personal liberty[, i]t is to be granted with caution [and] continued in force with caution.” Cohen v. Cohen, 64 N.E.2d 689, 693 (Mass. 1946); Elkay Steel Co. v. Collins, 141 A.2d 212, 218 (Pa. 1958) (stating that “use and employment [of the writ] must be carefully circumscribed within appropriate limits and its issuance exercised with great caution and only in such instances where it clearly and unmis-takably applies”). “As an adjunct to the trial court’s equitable jurisdiction, the issuance, terms, and implementation of writs of ne exeat lie within the court’s sound discre-tion.” Gredone v. Gredone, 361 A.2d 176, 180 (D.C. 1976).{12} Once the purpose of the writ and conditions of the bond have been fulfilled, the writ and the bond are discharged. May v. May, 91 S.E. 687, 688 (Ga. 1917) (stating that when the defendant did all that he was “obligated to do in his bond; and, the bond having discharged all the offices for which it was intended, [the bond] should have been canceled as functus officio, and the sureties discharged”); 27A C.J.S. Divorce § 198 (2015) (“Upon the fulfillment of the purpose of the writ and the conditions of the bond, . . . the writ and the bond are functus officio.” (footnotes omitted)); Black’s Law Dictionary 787 (10th ed. 2014) (defining “functus officio” as “without further authority or legal competence because the duties and functions of the original commission have been fully ac-complished”). On the other hand, failure to comply with the conditions of a ne exeat bond results in forfeiture of the bond. See 27A C.J.S. Divorce § 198 (“A failure to meet the conditions of a ne exeat bond forfeit[s] the entire bond.”); Queck, 405 P.2d at 912 (stating that where the defendant failed to stay within the jurisdiction, the bond was forfeited). As with the issuance of a writ of ne exeat, “the matter of discharge . . . on a [n]e exeat bond rests in the sound discre-tion of the court.” Coursen v. Coursen, 252 A.2d 738, 739 (N.J. Super. Ct. App. Div. 1969).Defendant’s Arguments{13} Defendant makes four arguments. First, he argues that the district court lacked jurisdiction to order an increase in



http://www.nmcompcomm.us/Advance Opinionsthe ne exeat bond. Second, he maintains that the ne exeat bond violated the UPA. Third, Defendant contends that there was insufficient evidence to support increas-ing the bond. Finally, he argues that he was deprived of his right to due process of law when the district court ordered the ne exeat bond increased. We address these arguments in turn.1. Jurisdiction to Increase the Bond{14} Defendant argues first that the district court did not have jurisdiction to increase the amount of the bond because an appeal was pending in the underly-ing matter (Atherton I). We review such jurisdictional questions de novo. Smith v. City of Santa Fe, 2007-NMSC-055, ¶ 10, 142 N.M. 786, 171 P.3d 300. Defendant relies on the general rule “that the filing of a proper notice of appeal divests the district court of jurisdiction and transfers jurisdiction to the appellate court.” Murken v. Solv-Ex Corp., 2006-NMCA-064, ¶ 9, 139 N.M. 625, 136 P.3d 1035. Recogniz-ing that “the rule is not absolute, as it does not prevent the district court from taking actions to carry out or enforce the judgment[,]” id. (internal quotation marks and citation omitted), Defendant argues that “increasing the amount of the ne exeat bond by $120,000 does not enable the [district] court to carry out or enforce the judgment.” Rather, he argues, the increase in the bond amount was a modification of the judgment, an act not within the district court’s jurisdiction once the judgment is appealed. See Hall v. Hall, 1992-NMCA-097, ¶ 38, 114 N.M. 378, 838 P.2d 995 (“As a general rule, while a court has jurisdiction after the judgment to enforce that judgment, it lacks jurisdic-tion to modify the judgment except under limited circumstances.”).{15} Defendant’s argument ignores the basic nature of the writ. A ne exeat bond order “is not in itself a remedy. It is a means to effectuate a remedy by keeping a party within the jurisdiction of the court.” 57 Am. Jur. 2d Ne Exeat § 2 (2015). The writ is not part of the judgment. Id. It follows that modification of a bond amount is not akin to modification of a judgment.{16} To the extent that Defendant argues that the ne exeat bond order is not collat-eral to the underlying judgment because “[t]here can be no issuance of a writ of ne exeat if there is no violation of the [UPA,]” we disagree. Issuance of the writ does not depend on an actual violation of the UPA. Section 57-12-17 permits the issuance of a writ of ne exeat when the “attorney general

has reasonable belief that any person is us-ing or is about to use any method, act or practice which is declared by the [UPA] to be unlawful” and “reasonable belief that any such person is about to remove himself from the [S]tate of New Mexico, or is about to remove his property or as-sets from the [S]tate of New Mexico.” Id. (emphasis added). This language indicates that the Legislature contemplated issuance of the writ even before entry of judgment on the UPA claims. The writ is thus an aid to effecting a remedy for UPA violations, but it is not itself a remedy. It is necessarily collateral to any UPA judgment that may be entered.{17} Finally, Defendant argues that the district court lost jurisdiction to enter the writ once judgment was entered because Section 57-12-17 provides for issuance of the writ “until a determination of the issues has been made.” We do not agree. Given the purposes of the writ of ne exeat, it does not make sense to construe the statute as depriving the district court of jurisdiction over this collateral matter while a judg-ment is on appeal. Instead, we interpret this language to permit continuation of the writ until the issues are completely de-termined, meaning that judgment is either paid or dismissed. See Tafoya v. Garcia, 1871-NMSC-003, ¶ 5, 1 N.M. 480 (“The spirit, as well as the letter of the statute, must be respected; and where the whole context of a law demonstrates a particular intent in the [L]egislature to effect a certain object, some degree of implication may be called in to aid that intent[.]” (internal quotation marks and citation omitted)). We conclude that the modification of the ne exeat bond order here was within the district court’s jurisdiction to enforce its judgment in Atherton I notwithstanding the appeal of that judgment.2. The Bond Conforms to the Statute{18} Defendant next argues that issuance of a bond order conditioned on refrain-ing from dissipating assets is contrary to the terms of the UPA. He distinguishes a writ of ne exeat from a ne exeat bond and argues that whereas Section 57-12-17 per-mits entry of a writ to prevent dissipation, Section 57-12-18 limits ne exeat bonds to those conditioned on the defendant’s appearance in court. Section 57-12-18 states that “[t]he court may require any . . . person [alleged to violate the UPA] to post a ne exeat bond conditioned on such per-sons [person’s] appearance at all hearings on the matter at issue.” (Third alteration in original). Defendant’s argument presents a

question of statutory construction which we review de novo. Hovet v. Allstate Ins. Co., 2004-NMSC-010, ¶ 10, 135 N.M. 397, 89 P.3d 69.{19} “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. Where a statute touches an issue in the common law, we interpret the stat-ute’s language in the context of that law. Sims v. Sims, 1996-NMSC-078, ¶ 23, 122 N.M. 618, 930 P.2d 153. We assume that the Legislature was “informed about the existing common law before the statute was enacted,” id. ¶ 24, and interpret a statute “as supplanting the common law only if there is an explicit indication that the [L]egislature so intended.” Id. ¶ 22. “This rule of construction is a recogni-tion that any law is passed against the background of all the law in effect at the time. If no aspect of the background of law is clearly abrogated, it is presumed to be consistent with, if not incorporated into, new legislation.” Id. ¶ 24.{20} As discussed above, at common law, a bond is an inherent part of a writ of ne exeat. Put another way, the writ itself contemplates—if not requires—a bond. 57 Am. Jur. 2d Ne Exeat § 2 (“A writ of ne exeat may be issued to secure to the plaintiff the presence of the defendant within the limits of the court’s jurisdiction until the satisfaction of the plaintiff ’s equitable claim or until a bond, or equitable bail, is given for that purpose.” (emphasis added) (footnote omitted)). Defendant’s distinction between a writ of ne exeat and a ne exeat bond is, therefore, specious. In ad-dition, “[h]istorically, where the removal of property would defeat the purpose of a ne exeat writ, the order in the writ may detain property, as well as the person.” 57 Am. Jur. 2d Ne Exeat § 9. Hence, at common law, a ne exeat writ, including a bond, may be conditioned on preservation of assets. Although Section 57-12-18 provides for an instance in which a bond may be required, it does not prohibit bonds related to assets or property. Therefore, since the statute is silent as to these bonds, the statute does not abrogate the common law. Issuance of the bond order conditioned on preserva-tion of assets was not contrary to the UPA.3. Sufficiency of the Evidence{21} Next, Defendant argues that the dis-trict court’s decision to increase the bond amount was not supported by sufficient evidence. He alleges three ways in which



http://www.nmcompcomm.us/Advance Opinionsthe district court’s order was error. First, he argues that because the district court’s first ne exeat bond order of $100,000 was based on the value of the Solano property, the subsequent increase of the bond order based on a real estate contract related to the same property was improper. Second, he contends that there was no evidence that he had an ownership interest in the Solano property. Third, he maintains that there was no evidence that he had or would dissipate assets in New Mexico. We address these arguments in turn.{22} The fundamental premise of Defen-dant’s first argument is that the amount of the bond order must be based on the value of the property he is allegedly dissipating and that, therefore, the same property cannot serve twice as the basis for a bond order. It appears that the parties and the district court shared this understanding of the limits on the amount of a ne exeat bond. But the parties do not cite and we have found no authority supporting this premise. Rather, some authorities state that the amount of a ne exeat bond is related to the amount of the plaintiff ’s interests or the judgment. See, e.g., Polly J. Price, Full Faith & Credit & the Equity Conflict, 84 Va. L. Rev. 747, 801 (1998) (“The writ was commonly directed to a sheriff to require the defendant to post sufficient security that he would not depart the territory without leave of the court, in an amount sufficient to satisfy the plaintiff ’s interest, or be imprisoned.”); 57 Am. Jur. 2d Ne Exeat § 26 (2015) (“The sum assessed must be sufficient to cover not only the existing debt but also costs and a reasonable amount of future interest having regard to the probable duration of the suit.”); McNa-mara v. Dwyer, 7 Paige Ch. 239, 245 (N.Y. Ch. 1838) (holding that “[t]he amount in which the defendant is held to bail upon the [n]e exeat should therefore be reduced to $9000; as that will be sufficient to cover what will probably be found due to the complainants, with interest and costs”). Other authorities appear to endorse a bond based on an assessment of the amount nec-essary to provide the defendant a material incentive to remain within the jurisdiction and/or refrain from dissipating assets without regard to the amount at issue in the underlying action. See, e.g., Elkay Steel Co., 141 A.2d at 214 n.3 (ordering bond of $25,000 each from two defendants where the amount in issue was $60,165); Gredone, 361 A.2d at 179 (ordering bond of $1,000 where trial ultimately resulted in money judgments against the defendant totaling

over $13,000). Thus, to the extent that Defendant argues that the increase of the bond was improper because it was based on the same property used as a basis for the initial bond, we disagree because the amount of the bond need not necessarily be tied to the value of the property.{23} Defendant directs us to Siravo v. Siravo, 670 So. 2d 983, 985 (Fla. Dist. Ct. App. 1996), in which the court stated that a writ is not “a substitute for a contempt, injunction, or other enforcement order, where its purpose is not to prevent a party from fleeing or removing assets but, rather, to force the party to post security, or produce assets, that would be used to satisfy a judgment.” But in that case, the court also expressly stated that a ne exeat bond is “a valuable resource in the arsenal of remedies available to a trial court in order to secure alimony and support.” Id. The Siravo court found that a ne exeat bond was improper in that case because there was no evidence of the defendant’s intent to flee the jurisdiction and other remedies, such as contempt, were avail-able to enforce the court’s judgment. Id. We interpret the court’s statements to indicate that a ne exeat bond is inap-propriate where its only purpose is to secure assets, rather than to prevent the defendant from fleeing or dissipating as-sets. We decline Defendant’s invitation to interpret the holding in Siravo as a blanket prohibition against a ne exeat bond as used in this case.{24} In any case, the authorities agree on two points related to the bond: that the amount of the bond is within the district court’s discretion and that the bond amount may not be excessive or oppressive. Gredone, 361 A.2d at 180 (“As an adjunct to the trial court’s equi-table jurisdiction, the issuance, terms, and implementation of writs of ne exeat lie within the court’s sound discretion.”); State v. Browne, 142 So. 247, 250 (Fla. 1932) (“Excessive or unreasonable bail should never be required; as the writ is a purely civil writ, it should not be allowed to be used oppressively or in unnecessary violation of the defendant’s constitutional right to personal freedom to go and come as he may please.”). The total bond amount including the increase was $370,000, well under the total amount of the judgment of approximately $2.5 million. Further, Defendant does not argue on appeal that the bond amount is excessive or oppres-sive. We discern no abuse of discretion in the bond amount.

{25} This conclusion leads us to Defen-dant’s second and third arguments having to do with whether there was substantial evidence that he has an ownership inter-est in the Solano property or that he was dissipating assets from New Mexico. The district court abuses its discretion if it en-ters findings of fact that are not supported by substantial evidence. Perkins v. Dep’t of Human Servs., 1987-NMCA-148, ¶ 19, 106 N.M. 651, 748 P.2d 24 (“An abuse of discretion is established if the . . . lower court has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the find-ings are not supported by the evidence.”). When reviewing for substantial evidence, we adhere to the following principles:

If substantial evidence supports a trial court’s conclusion it will not be disturbed on appeal. Sub-stantial evidence is such relevant evidence that a reasonable mind would find adequate to support a conclusion. Evidence is substan-tial even if it barely tips the scales in favor of the party bearing the burden of proof.

Landavazo v. Sanchez, 1990-NMSC-114, ¶ 7, 111 N.M. 137, 802 P.2d 1283 (citations omitted).{26} In addition, “in deciding whether the finding has substantial support, the court must view evidence in the light most favorable to support the finding[.]” Duke City Lumber Co. v. N.M. Envtl. Improve-ment Bd., 1984-NMSC-042, ¶ 12, 101 N.M. 291, 681 P.2d 717. We do not review “any evidence unfavorable to the finding” and do “not weigh conflicting evidence or determine credibility of witnesses.” Id.{27} Defendant does not dispute that he owned the Solano property in December, 2011 and that he entered into a real es-tate contract for sale of the property and transferred his interest in the property to his wife on December 9, 2011, just days before judgment was entered in Atherton I. The Attorney General attached a copy of the real estate contract to its motion to increase the bond and copies of a “memorandum of real estate contract” and the transfer document were entered into evidence at the hearing on the motion to increase.{28} As we understand it, Defendant’s argument is that he could not be dissi-pating funds from the sale of the Solano property because he does not currently have an interest in it. This argument is unavailing. Based on the undisputed



http://www.nmcompcomm.us/Advance Opinionsfacts, viewed in the light most favor-able to the district court’s decision, we conclude that the district court could reasonably find that the sale and transfer of the property themselves constituted dissipation of that asset. Since the real estate contract indicated that payments from the sale were continuing at the time of the hearing on the motion to increase, the district court’s finding that “assets are continuing to be dissipated from the jurisdiction of this [c]ourt” is also sup-ported by the evidence.{29} Defendant also appears to rely on the fact that the property was sold be-fore entry of judgment in Atherton I as evidence that the ne exeat order and bond were improper. But under Section 57-12-17, entry of a judgment is not a prerequisite to issuance of the writ. Hence, it was not an abuse of discretion for the district court to consider the sale of the property even though it occurred before the entry of the judgment and before the application for writ of ne exeat.1

4. Due Process{30} Finally, Defendant makes a brief argument that he was denied the due process of law accorded him by the New Mexico and federal constitutions because he had no opportunity to be heard before the ne exeat bond was increased. See U.S. Const. amend. V; N.M. Const. art. II, § 18. Defendant relies on Jacobsen v. Jacobsen, 126 F.2d 13, 14-15 (D.C. Cir. 1942), for the proposition that “since he had denied the allegations of the [motion for increase], he was further entitled to a full hearing [including] a full opportunity to introduce oral testimony.” There, the court held that where “[the defendant] was given no such

opportunity, continuing the writ [ne exeat] in force deprived him of his liberty with-out due process of law, in violation of the Fifth Amendment.” Id. at 15. Due process is provided when a defendant has “timely notice . . . ; a reasonable opportunity to [be heard]; a reasonable opportunity to confront and cross-examine adverse witnesses and present evidence . . . ; rep-resentation by counsel . . . ; and a hearing before an impartial decisionmaker.” In re Pamela A.G., 2006-NMSC-019, ¶ 12, 139 N.M. 459, 134 P.3d 746 (internal quotation marks and citation omitted).{31} Defendant acknowledges that this argument was not raised in the district court and, therefore, was not preserved for appeal. Generally, “[d]ue process claims will not be addressed when raised for the first time on appeal.” State v. Martinez, 2007-NMCA-160, ¶ 4, 143 N.M. 96, 173 P.3d 18. Defendant argues that neverthe-less we should review this issue because “it involves the public interest and the funda-mental right[s] of Defendant.” See Rule 12-216(B) NMRA. But, other than asserting that “a writ of ne exeat is an infringement on a party’s liberty interest[,]” Defendant provides no reason why this particular due process challenge should be exempt from the general preservation rule. Similarly, al-though he asserts that “this case implicates the public interest because enforcement of the [UPA] is entrusted to the Attorney General on behalf of the people of New Mexico,” he gives no reason why this fact distinguishes this matter from any other pursued by a state agency. Thus, we need not address this argument any further. Cf. Doe v. State, 1975-NMCA-108, ¶ 18, 88 N.M. 347, 540 P.2d 827 (declining to ad-

dress the respondents’ arguments because they did not provide “some showing on appeal of the suggested fundamental or jurisdictional nature of the error”). How-ever, to foreclose any further argument on the issue, we will address it on its merits.{32} Defendant’s assertion that he was provided no opportunity to be heard on the motion for increase is flatly contra-dicted by the record, as is his contention that the Attorney General presented “noth-ing but innuendo” at the hearing and that the district court considered “no evidence whatsoever.” Defendant filed a response in opposition to the motion in which he disputed that he was dissipating assets from New Mexico and contested the At-torney General’s interpretation of the real estate contract documenting sale of the Solano property. Moreover, Defendant had notice of and was present and represented by counsel at the hearing on the motion. There is no indication in the record that Defendant was denied the opportunity to present witnesses at the hearing. Finally, the Attorney General submitted a memo-randum of the real estate contract as an exhibit, and Defendant himself submitted an exhibit for the district court’s review. Defendant’s right to due process of law was not violated.CONCLUSION{33} For the foregoing reasons, we affirm the district court’s order increasing the amount of the writ of ne exeat bond.{34} IT IS SO ORDERED.

MICHAEL D. BUSTAMANTE, Judge

WE CONCUR:RODERICK T. KENNEDY, JudgeLINDA M. VANZI, Judge

1Defendant directs our attention to an affidavit filed with this Court, which is not part of the record proper. We do not consider evidence not reviewed in the first instance by the district court. State v. Romero, 1975-NMCA-017, ¶ 2, 87 N.M. 279, 532 P.2d 208 (“Matters outside the record present no issue for review.”). We also decline to consider documents cited by the Attorney General that were not part of the record below. See id.



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Thank You to

Sutin, Thayer & Browne 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 attorneys of Sutin, Thayer & Browne for volunteering their time and expertise at the October 7, 2015 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-four individuals received assistance at the October clinic thanks to the dedication of eight attorneys from Sutin, Thayer & Browne and one attorney who assists with the clinic on a regular basis. Thank you:

If you or your firm is interested in volunteering to host a clinic, please contact Aja Brooks at [email protected] or 505-797-6040.

Sutin, Thayer & Browne:Lynn MostollerChristopher A. HollandCurtis VernonChuck PiechotaKeith Mier

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ClassifiedPositions

Experienced Legal AssistantGUEBERT BRUCKNER P.C. busy litigation firm looking for experienced Legal Assistant to support 11 attorneys. Candidate will co-ordinate with various members of the staff to accomplish the needs of attorneys. Duties include but are not limited to: finalizing documents for submission to clients, State and Federal courts. Excellent communica-tion skills required in order to meet deadlines and to comply with various client guidelines. Strong writing and proof reading skills, as well as knowledge of court rules required. Hours 8:30 to 5:30. Firm uses Microsoft Word, Excel, and Outlook. Please submit resume and salary requirement to Kathleen A. Guebert, POB 93880, Albuquerque, NM 87109.

Las Cruces AttorneyHolt Mynatt Martínez, P.C., an AV-rated law firm in Las Cruces, New Mexico is seeking an associate attorney with 3-5 years of experi-ence to join our team. Duties would include providing legal analysis and advice, preparing court pleadings and filings, performing legal research, conducting pretrial discovery, pre-paring for and attending administrative and judicial hearings, civil jury trials and appeals. The firm’s practice areas include insurance defense, civil rights defense, commercial litiga-tion, real property, contracts, and governmen-tal law. Successful candidates will have strong organizational and writing skills, exceptional communication skills, and the ability to in-teract and develop collaborative relationships. Salary commensurate with experience, and benefits. Please send your cover letter, resume, law school transcript, writing sample, and references to [email protected].

General Law CounselSandia National LaboratoriesProvides legal advice and counsel to manage-ment on applicable laws, regulations, U.S. Department of Energy (DOE) contract com-pliance, and corporate policies or procedures. Interprets and prepares legal documents and analyzes and advises on corporate policies. Advises the corporation in various areas of general law, including corporate law, tax law, labor and employment law, privacy, and in-formation practices. Minimum of 5 years of experience practicing law. Excellent oral and written communication skills required. Ap-ply online at http://www.sandia.gov/careers . Click on “View all jobs” and enter Job Number “651787" into the Keyword search.

Associate AttorneyStiff, Keith & Garcia, LLC is receiving appli-cations for an associate attorney position to practice in the areas of insurance defense and civil litigation. Strong academic credentials, and research and writing skills are required. Spanish speaking a plus. You should be able to work without supervision, have great people skills, and have a strong work ethic. Excellent benefits and salary. Great working environment with opportunity for advance-ment. We are a successful and growing law firm representing national clients across the state. Send resume to [email protected].

Attorney With Current Case LoadRosales Law Group seeks an attorney with a current case load. If interested, please send re-sume to: [email protected] All resumes are kept confidential.

Associate AttorneyThe Santa Fe office of Hinkle Shanor LLP seeks an associate attorney with 2-4 years of experience for general civil practice including environmental, natural resources, water and public utility law, and defense of employment and civil rights claims. Candidates should have strong academic background, excellent writing and research skills, and the ability to work independently. Please send resume, law school transcript, and writing sample to Hiring Partner, P.O. Box 2068, Santa Fe, New Mexico 87504-2068

Lawyer Supervisor (NMDOT)The Office of General Counsel of the New Mexico Department of Transportation is recruiting for a Deputy General Counsel (Lawyer Supervisor) position. The lawyer will need experience and represent the Department in several of the following practice areas: ad-ministrative law; bonding and finance issues; employment, civil rights and labor relations matters; environmental law; Indian law; public contract; and government procurement law. In addition, the lawyer will devote a substantial portion of time directly supervising work of other OGC attorneys, paralegals and support staff. The successful applicant will advise senior management on the most complex and difficult legal and management issues involving agency programs, budgets, and legislation, and may participate on management teams to meet the agency’s mission. The requirements for the po-sition include a J.D. Degree from an accredited law school, a current license to practice law in New Mexico, and a minimum of five years of experience in the practice of law. Supervisory experience is desired but not required. Over-night travel throughout the state and a valid, unrestricted New Mexico driver’s license are also required. The salary range is $50,898 - $88,525 per year, and includes an excellent benefits and retirement package, and paid leave and holidays. The OGC offers a great working environment with supportive colleagues and a dedicated support staff. The position is located in Santa Fe. The salary offered to the successful candidate will be based on qualifications and experience. Interested persons must submit an on-line application through the State Per-sonnel Office website at http://www.spo.state.nm.us/, no later than the applicable closing date posted by State Personnel. Additionally, please submit a copy of your resume, writing sample and bar card to the attention of Jason Giron, in the Human Resources Division of the New Mexico Department of Transportation, located at 1120 Cerrillos Road Room 135, P.O. Box 1149, Santa Fe, New Mexico 87504. The New Mexico Department of Transportation is an Equal Opportunity Employer.

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Eleventh Judicial District Attorney’s Office, Div II The McKinley County District Attorney’s Of-fice is currently seeking immediate resumes for one (1) Assistant Trial Attorney. Position is ideal for persons who recently took the bar exam. Persons who are in good standing with another state bar or those with New Mexico criminal law experience in excess of 5 years are welcome to apply. Agency guarantees regular courtroom practice and a supportive and collegial work environment. Salaries are negotiable based on experience. Submit letter of interest and resume to Kerry Comiskey, Chief Deputy District Attorney, 201 West Hill, Suite 100, Gallup, NM 87301, or e-mail letter and resume to [email protected] by 5:00 p.m. December 30, 2015.



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Services

Orthopedic SurgeonOrthopedic Surgeon available for case review, opinions, exams. Rates quoted per case. Send inquiries to: [email protected]

Office Space

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 conference rooms, a large waiting area, access to full library, receptionist to greet clients and take calls. Call 243-3751 for appointment to inspect.

Office SpaceOne office space with secretarial space for rent. Beautiful Uptown one-story building, ample parking, near Louisiana and Menaul. Rent includes shared use of receptionist and four conference rooms. Rent also includes utilities except phone and internet. $675 for each office space. Basement space is also available for rent for files. Space will be avail-able January 1, 2016. Contact Cathy Davis at 881-3191 or [email protected] for more information.

Legal AssistantCivil litigation firm in search of a self-moti-vated individual interested in employment as a legal assistant. The right individual must be skilled in using Microsoft applications in-cluding Word, Excel, Outlook and Exchange. Experience is a must. Please email resumes to: [email protected] All resumes are kept confidential.

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.

Corrales, NM Office SpaceShare beautiful office space with an expe-rienced trial lawyer. Spectacular mountain views serve as the backdrop for two available offices. Rent includes receptionist, furnish-ings, space for support staff, access to con-ference room and ample parking. For more information call Jim Ellis at (505) 266-0800.

Upscale Full-Service Executive/Legal Office Space AvailableA brand new gorgeous build-out has just been completed of this North Valley/Old Town office building. Base lease includes ac-cess to two large conference rooms with full A/V suite, secure independent internet LAN and wifi. Full-service options included dedi-cated receptionist services, office supplies and printing, and as-need or part-time/full-time paralegal and/or legal assistant services. The office is just minutes away from the courts. 2 grand offices available and 4 standard offices available on a month-to-month basis or with substantial discounts available for 12 month leases. Contact Peter at 505.510.1115 via VM or Text. To view photos of the available of-fice space, go to http://unbouncepages.com/abl-leasing/

Assistant District AttorneyThe Fifth Judicial District Attorney’s office has an immediate position open to a new or ex-perienced attorney. Salary will be based upon the District Attorney Personnel and Compen-sation Plan with starting salary range of an Associate Trial Attorney to a Senior Trial At-torney ($41,685.00 to $72,575.00). Please send resume to Dianna Luce, District Attorney, 301 N. Dalmont Street, Hobbs , NM 88240-8335 or e-mail to [email protected].

Tribal Court Judge – Housing Authority Dispute Division (HADD) The Pueblo of Cochiti is seeking applications for a Tribal Court Judge for the 2016-2017 Term. The position is approved by the Tribal Council. The Pueblo of Cochiti Tribal Court – Housing Authority Dispute Division (HADD), has jurisdiction over all housing cases in-cluded in the HADD Ordinance. Minimum Qualifications: High School Graduate with strong preference to a licensed attorney who has practiced and applied Native American Indian Law. Other Relevant Qualifications: Experience in Federal Indian Law; General Knowledge of Indian Tribes, including the Pueblo of Cochiti; Knowledge of courts that administer justice; including criminal and civil court systems; Ability to hear court cases and render oral and written decisions based on interpretation of law and findings of fact; Ability to interpret laws, including the Cochiti Pueblo Tribal Court- Housing Authority Dis-pute Division Code and other relevant law; Successful completion of a background check. Preference is given to Cochiti Tribal Members. Annual Salary will be based on experience. Send a Resume and Letter of Interest to: Pueblo of Cochiti Tribal Courts, PO Box 70, Cochiti Pueblo, NM 87072 or by fax at (505)-465-3168. Closing Date: August 10, 2015, or until filled. For further information, contact the Cochiti Pueblo Tribal Court Office at (505)465-3106 or the Pueblo de Cochiti Housing Authority Office at (505)465-0264.

Seeking Contract WorkLegal research, brief writing, file manage-ment. Excellent skills. Resume, references and writing samples available. [email protected] or (505) 699-9645.

Positions Wanted

Are You Looking For a FT Legal Assistant/Secretary?7 years experience, Personal Injury or Insurance Defense, Gen./Civil Litigation, ONLY. Professional. Transcription, Proof-reading/Formatting, Organized, Attn. to Detail, E-filing in Odyssey-CM/ECF, Cust. Svc. Exp., Basic Pleadings, Discovery Prep., Calendaring, File Maintenance, MSWord, MS Outlook, Excel. Please contact [email protected] for Resume, Salary Expectations and References.

Associate AttorneyAllen, Shepherd, Lewis & Syra, P.A. is seeking an associate attorney with 0-5 years experi-ence. Experience in worker's compensation, construction defects, professional malpractice or personal injury preferred but not required. Must be licensed in New Mexico or obtain New Mexico license. Candidates considered for a position must have excellent oral and written communication skills and demonstrate a strong desire for trial work. Available position is con-sidered regular and full time. We offer an excel-lent benefit package which includes medical, dental, vision, 401(k), life insurance, and long term disability benefits. Please send resume, unofficial transcript and writing sample to Hu-man Resources, PO Box 94750, Albuquerque, NM 87199-4750 or [email protected]. All replies will be kept confidential. EOE.

Uptown Square Prime Office Space Available1474SF and 2324SF professional office space. High quality improvements can be modified or developed to Tenants specification. Great visibility and access. Convenient access to I-40. On site amenities include Bank of America and companion restaurants. Sur-rounded by nearby shopping, ample parking and Full Service Lease. Call John Whisenant or Ron Nelson (505) 883-9662 for more in-formation.




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Documents

December 9, 2015 • Volume 54, No. 49 · by the State Bar of New Mexico, 5121 Masthead NE, Albuquerque, NM 87109-4367. Periodicals postage paid at Albuquerque, NM. Postmaster: Send