March 20, 2013 • Volume 52, No. 12 · Bar Bulletin - March 20, 2013 - Volume 52, No. 12. 1 . Window Series–Taos, by Helen Gwinn (see page 3) Weems Art Gallery, Albuquerque. Inside

Bar Bulletin - March 20, 2013 - Volume 52, No. 12 1

Window Series–Taos, by Helen Gwinn (see page 3) Weems Art Gallery, Albuquerque

Inside This Issue

March 20, 2013 • Volume 52, No. 12

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

Second Judicial District Court Investiture Ceremonies Judge Benjamin Chavez Judge Briana H. Zamora ................................ 4

Fourth Judicial District Court Judicial Vacancy ............................................. 4

Fifth Judicial District Court Judicial Appointment..................................... 4

MALSA to Honor Bingamans ............................ 9

State Bar 2013 Annual Awards: Call for Nominations ......................................9

Making a Difference: 2013 State Bar Essay Contest ........................10

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

From the New Mexico Court of Appeals

2013-NMCA-023, No. 30,824: State of New Mexico ex rel. Office of the State Engineer v. Elephant Butte Irrigation District ................................17

2013-NMCA-024, No. 31,230: Clinesmith v. Temmerman ............................21

2013-NMCA-025, No. 30,379: State v. Parvilus .............................................28

2013-NMCA-026, No. 30,910: Serna v. Gutierrez ..........................................34

Special Insert2013 Annual Meeting–

Bench and Bar Conference

2 Bar Bulletin - March 20, 2013 - Volume 52, No. 12

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Notices ................................................................................................................................................................4Legal Education Calendar .............................................................................................................................6Writs of Certiorari ............................................................................................................................................7MALSA to Honor Bingamans ........................................................................................................................9State Bar 2013 Annual Awards: Call for Nominations .........................................................................9Making a Difference: 2013 State Bar Essay Contest .......................................................................... 10List of Court of Appeals’ Opinions ........................................................................................................... 11Clerk’s Certificates ......................................................................................................................................... 12Recent Rule-Making Activity ..................................................................................................................... 14Opinions

From the New Mexico Court of Appeals 2013-NMCA-023, No. 30,824: State of New Mexico ex rel. Office of the State Engineer v. Elephant Butte Irrigation District ............................................................................ 17

2013-NMCA-024, No. 31,230: Clinesmith v. Temmerman ..................................................... 21

2013-NMCA-025, No. 30,379: State v. Parvilus .......................................................................... 28

2013-NMCA-026, No. 30,910: Serna v. Gutierrez ...................................................................... 34

Advertising ..................................................................................................................................................... 39

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

Board of Editors Jennifer C. Esquibel, Chair George C. Kraehe Ian Bezpalko Maureen S. Moore Cynthia A. Christ Tiffany L. Sanchez Kristin J. Dalton Michael J. Thomas Jocelyn C. Drennan Joseph Patrick Turk

State Bar Staff Executive Director Joe Conte Managing Editor D.D. Wolohan 505-797-6039•[email protected] Editor Dorma Seago 505-797-6030•[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

©2013, State Bar of New Mexico. No part of this publica-tion may be reprinted or otherwise reproduced without the publisher’s written permission. The Bar Bulletin has the authority to edit letters and materials submitted for publication. Publishing and editorial decisions are based on the quality of writing, the timeliness of the article, and the potential interest to readers. Appearance of an article, editorial, feature, column, advertisement or photograph in the Bar Bulletin does not constitute an endorsement by the Bar Bulletin or the State Bar of New Mexico. The views expressed are those of the authors, who are solely responsible for the accuracy of their citations and quotations. State Bar members receive the Bar Bulletin as part of their annual dues. The Bar Bulletin is available at the subscription rate of $125 per year and is available online at www.nmbar.org.The Bar Bulletin (ISSN 1062-6611) is published weekly by the State Bar of New Mexico, 5121 Masthead NE, Albuquerque, NM 87109-4367. Periodicals postage paid at Albuquerque, NM. Postmaster: Send address changes to Bar Bulletin, PO Box 92860, Albuquerque, NM 87199-2860.

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

March 20, 2013, Vol. 52, No. 12

Cover Artist: Helen Gwinn’s expressive images are acrylics on wooden panels and watermedia on paper with collage. She often embellishes her works with handmade paper packets stuffed, folded, tied, painted, and incorporated into each composition (www.hgwinn.com).

State Bar WorkShopS

March

20 Lawyer Referral for the Elderly Workshop 9:30–10:45 a.m., Presentation 1–4 p.m., Clinics Cibola Senior Center, Grants

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

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

april

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

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

25 Consumer/Debt Bankruptcy Workshop 5:30 p.m., Law Office of Kenneth Egan, Las Cruces

MeetingS

March

20 Committee on Women and the Legal Profession, noon, Lewis and Roca LLP

20 Law Practice Management Committee, Noon, State Bar Center

21 Health Law Section BOD, 7:30 a.m., via teleconference

22 Immigration Law Section BOD, Noon, via teleconference

26 Appellate Practice Section BOD, Noon, via teleconference

26 Intellectual Property Law Section BOD, Noon, Lewis and Roca LLP

28 Natural Resources, Energy, and Environmental Law Section BOD, Noon, via teleconference

29 ADR Committee, Noon, Bernalillo County District Court

taBle of contentS


noticeS

With respect to the courts and other tribunals:

When hearings or depositions are cancelled, I will notify opposing counsel, necessary parties, and the court (or other tribunal) as early as possible.

profeSSionaliSM tipcourt neWSSecond Judicial District CourtInvestiture Ceremonies Members of the legal community are cordially invited to the investiture ceremo-nies of Judge Benjamin Chavez, Division XIX, and Judge Briana H. Zamora, Division VI, at 5 p.m., March 20, at the Hispanic Cultural Center, 1701 Fourth St. SW, Al-buquerque. A reception will follow in the Cayetana Romero Lobby. Judges who want to participate in the ceremony should bring their robes and report to the 2nd Judicial District Court Jury Room 338A between 4–4:25 p.m.Volunteer Attorney ProgramFree Foreclosure Clinic Attorneys are available April 3 to provide free legal advice to low-income individuals facing foreclosure or pre-foreclosure issues. Clinics are held the first Wednesday of each month from 10 a.m.–1 p.m. in the Third Floor Confer-ence Room, 2nd Judicial District Court, 400 Lomas Blvd. NW, Albuquerque. Clients should bring all related paperwork. Direct questions to Erin Olson, 505-768-6114. A special thank-you goes to the clinic’s volunteer attorneys: Dennis Banning, Tom Rice, Erik Thunberg, Allan Wainwright, and Dena Wurman. The clinic is sponsored by the 2nd Judicial District Pro Bono Commit-tee and the Volunteer Attorney Program.

Fourth Judicial District CourtJudicial Vacancy A vacancy exists as of Feb. 28 on the 4th Judicial District Court in Las Vegas due to the resignation of Judge Eugenio S. Mathis. The position is in Division I, representing San Miguel, Guadalupe and Mora counties. Inquiries regarding more specific details of this vacancy should be directed to the chief judge or the administrator of the court. The dean of the UNM School of Law, designated

by the New Mexico Constitution to chair the District Court Nominating Committee, solicits applications for this position from lawyers who meet the statutory qualifica-tions in Article VI, Section 14, of the New Mexico Constitution. Applications, as well as information related to qualifications for the position, may be obtained from the Ju-dicial Selection website at http://lawschool.unm.edu/judsel/application.php or by con-tacting Raylene Weis, 505-277-4700. The deadline for applications is 5 p.m., March 21. Applications received after that date will not be considered. Applicants seeking information regarding election or retention if appointed should contact the Bureau of Elections in the Office of the Secretary of State. The Judicial Nominating Committee will meet at 9 a.m., March 29, at the 4th Judicial District Court, 496 W. National St., Las Vegas, to evaluate the applicants for this position. The meeting is open to the public and those who wish to speak about any of the candidates will have an opportunity to be heard.

Fifth Judicial District CourtJudicial Appointment Effective April 1, Gov. Susana Martinez has appointed James Hudson of Roswell to the 5th Judicial District Court, Division VI, due to the death of Judge Ralph Shamas. Hudson currently works as a civil litigation attorney for Hinkle, Hensley, Shanor & Martin, where he has been a partner since 1990. He serves on the Roswell Chamber of Commerce and with several civic and youth ministry organizations. He received his B.A. in economics from Notre Dame University

and his law degree from the UNM School of Law. Pursuant to Supreme Court Rule 1-088.1, parties who have not yet exercised a peremptory excusal will have 10 days from April 10 to excuse Judge Hudson.

State Bar neWSAttorney Support Group

• April 1, 5:30 p.m. Afternoon groups meet on the first Monday of the month.

• April 15, 7:30 a.m. Morning groups meet on the third Monday of the month.

Both groups meet at the First United Methodist Church at Fourth and Lead SW, Albuquerque. For more informa-tion, contact Bill Stratvert, 505-242-6845.

Support Group for Legal Professionals April 11, 5:30 p.m.

The group meets on the second Thursday of the month at the Unitarian Universal-ist Church, 107 West Barcelona Rd., Santa Fe. For more information, call Diego Zamora, 505-629-7343.

Bankruptcy Law SectionBoard Vacancy A vacancy exists on the board of the State Bar Bankruptcy Law Section. The board meets on the first Wednesday of each month. Members are expected to be involved in committees and to assist with section events, classes, etc. Send a letter of interest and résumé to Shay Meagle, [email protected], by 5 p.m., March 22. All

Judicial Records Retention and Disposition Schedules Pursuant to the Judicial Records Retention and Disposition Schedules, exhibits (see specifics for each court below) filed with the courts for the years and courts shown below, including but not limited to cases that have been consolidated, are to be destroyed. Cases on appeal are excluded. Counsel for parties are advised that exhibits (see specifics for each court below) can be retrieved by the dates shown below. Attorneys who have cases with exhibits may verify exhibit information with the Special Services Division at the numbers shown below. Plaintiff(s) exhibits will be released to counsel of record for the plaintiff(s), and defendant(s) exhibits will be released to counsel of record for defendant(s) by Order of the Court. All exhibits will be released in their entirety. Exhibits not claimed by the allotted time will be considered abandoned and will be destroyed by Order of the Court.

Court Exhibits/Tapes For Years May Be Retrieved Through

5th Judicial District Court Domestic Relations 1972-1997 April 10 Eddy County, 575-885-4740


www.nmbar.org

applications will be presented to the cur-rent board members for consideration and vote. The person selected will need to seek appointment again in the fall for a full term.

Employment and Labor Law SectionBoard Meetings Open to Section Members The Employment and Labor Law Sec-tion board of directors welcomes section members to attend its meetings on the first Wednesday of each month. The next meeting will be held at noon, April 3, at the State Bar Center. Lunch is provided to those who R.S.V.P. to [email protected]. Contact Chair Justin Poore, [email protected] or 505-284-6336.

Young Lawyers Division2013 Summer Fellowships The Young Lawyers Division is cur-rently accepting applications for its 2013 Summer Fellowships. The YLD is offering two fellowships for the summer of 2013 to law students who are interested in working in public interest law or the government sector. The fellowship awards are intended to provide the opportunity for law students to work for public interest entities or in the government sector in an unpaid posi-tion. Applications must be postmarked by March 29. Direct questions to Samantha M. Hults, [email protected]. Visit http://www.nmbar.org/AboutSBNM/YLD/YLDactivities.html for details.ABA YLD Scholarship The 2013-14 American Bar Associa-tion Young Lawyers Division Scholarship Program is designed to encourage the participation of minority, solo/small firm, government, private sector, and military service attorneys in the ABA YLD. Priority will be given to those applicants who express a desire to become actively involved with the ABA YLD and require financial assistance. For complete information, visit http://bit.ly/ZxMgeo. The application deadline is April 1.

unMLaw Library HoursThrough May 11Building & Circulation

Monday–Thursday 8 a.m.–10 p.m.Friday 8 a.m.–6 p.m.Saturday 8 a.m.–5 p.m.Sunday noon–8 p.m.

ReferenceMonday–Friday 9 a.m.–6 p.m.Saturday–Sunday Closed

other BarSAmerican Bar AssociationSpring Conference The ABA Section of Administrative Law and Regulatory Practice will hold its 2013 Spring Conference April 12–14 at the Inn and Spa at Loretto in Santa Fe. The program faculty includes both state and national speakers, with CLE programs on Alcohol Regulations and Airlines and The Future of NAFTA. For additional information and a registration form, contact Anne Kiefer, [email protected] or 202-662-1690.

other neWSFree Spring CLEs The following free CLEs are being offered in appreciation to attorneys who participate in the Volunteer Attorney Program. • Rules of Limited Representation

9–10 a.m., March 22 Presented by Dorene Kuffer, Law Office of Dorene A. Kuffer Free for VAP volunteers/$25 for non-volunteers

• Electronic Discovery 10 a.m.–noon, April 11 Presented by Srinivas Mukkamala, Ph.D., and Mark Fidel, CAaNES Free for VAP volunteers/$50 for non-volunteers

All CLEs will be held at Law Access New Mexico, 4141 Montgomery Blvd. NE, Al-buquerque. To register, contact Erin Olson, 505-768-6114 or [email protected].

N.M. Human Services DepartmentMedicaid Estate Recovery The New Mexico Human Services De-partment has secured the services of Health Management Systems to administer the Medicaid Estate Recovery Program. Pursu-ant to NMSA §27-2A-1, et seq., and federal law 42 U.S.C. § 1396p, the HSD is required to recover certain Medicaid expenditures. Medicaid includes programs providing payment for services delivered by nursing facilities, home- and community-based care, as well as hospital and prescription drug services. The HMS, on behalf of the HSD, will assert claims against the estates of recipients for the amount of medical assistance provided. This debt is recovered

Lawyers and Judges assistance Program

Through a network of recovering legal professionals and a professional counselor, the NMJLAP provides assistance to lawyers,

judges, and law students experiencing depression, alcohol and other drug abuse,

gambling problems, or other mentalhealth-related issues. Free, confidential

services are available 24-hours a day at 505-228-1948 and 800-860-4914.

For more information, call 505- 797-6003 and visit

www.nmbar.org/JLAP/JLAP.html.

Submit

announcements

for publication in

the Bar Bulletin to

[email protected]

by noon Monday

the week prior to

publication.

from the assets of the decedent subject to probate. The HMS will coordinate with personal representatives, executors, and attorneys and will provide the HSD’s claim amount and other necessary information. Upon the distribution of probate assets, the HMS will coordinate the recovery. Direct questions to [email protected] or 1-855-212-0144. When contacting the HMS, provide the decedent’s Medicaid ID number, date of birth, and date of death.


legal education

21 Ethics and Tribunals: Attorney Duties When Communicating W/C

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

22 Post-Mortem Estate Planning 1.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

22 Skeptically Determining the Limits of Scientific Evidence IV

4.5 G, 2.0 EP Albuquerque Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

March

26 Formula and Defined Value Clauses in Estate Planning: An Update

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

27 Making Your Case With a Better Memory With Paul Mellor

6.0 G Albuquerque Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

28 Solo and Small Firm Institute 5.5 G, 1.0 EP Albuquerque Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

28 Techniques and Traps for Merging Unincorporated Entities


29 Employment Investigations: Protecting You and Your Clients From Liability


2 The Federal Process in New Mexico 6.0 G Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

2 23rd Annual Appellate Practice Institute

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

2 Trial Practice Workshop: Putting an Edge on the Evidence

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

2–3 Overtime, Exempt and Non–exempt: 2013 Wage and Hour Update,

Parts 1 and 2 2.0 G National Teleseminar Center for Legal Education of

NMSBF 505–797–6020 www.nmbarcle.org

april

4–5 UCC Article 9 Practice Toolkit: From Attachment to Remedies, Parts 1 and 2

2.0 G National Teleseminar Center for Legal Education of


9 Estate Planning For Farmers and Ranchers



11–12 Planning and Drafting for Single Member LLCs, Parts 1 and 2



16 Structuring Preferred Stock and Preferred Returns in Business and Real Estate Transactions



18 Religious Accommodations in the Workplace



19 Ethics and Client Confidences: An Advanced Guide

1.0 EP National Teleseminar Center for Legal Education of

NMSBF 505–797–6020 www.nmbarcle.orglbuquerque Sterling Education Services, Inc.


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

effective March 8, 2013

Writs of certiorarias updated By the clerk of the neW Mexico supreMe court

petitions for Writ of certiorari filed and pending:Date Petition Filed

No. 34,053 State v. Hicks COA 30,370 03/08/13No. 34,052 State v. Silva COA 32,402 03/08/13No. 34,051 Ysasi v. Bravo 12-501 03/08/13No. 34,046 Pargin Realty v. Schmidt COA 31,689 03/07/13No. 34,048 State v. Baca COA 31,340 03/06/13No. 34,047 State v. Ingram COA 30,961 03/05/13No. 34,040 Mendez v. Wells Fargo COA 32,388 03/05/13No. 34,045 Millar v. Dept.

of Workforce Solutions COA 31,581 03/04/13No. 34,044 State v. Riordan COA 31,795 03/04/13No. 34,043 State v. Martinez COA 32,271 03/04/13No. 34,041 Blake v. Janecka 12-501 03/04/13No. 34,027 State v. Hess COA 31,536 03/01/13No. 34,039 Cavu Co. v. Martinez COA 32,021 02/28/13No. 34,037 State v. Morris COA 31,815 02/27/13No. 34,007 City of Albuquerque v.

AFSCME Local 3022 COA 31,075 02/27/13No. 34,010 N.M. Cattle Growers v.

N.M. Water Quality Control Commission COA 31,191 02/26/13

No. 34,035 Town of Edgewood v. N.M. Municipal Boundary Comm. COA 30,768 02/25/13

No. 34,034 McGraw v. Bernalillo County Commissioners COA 32,637 02/25/13

No. 34,033 State v. Maples COA 30,507 02/22/13No. 34,032 State v. Torres COA 31,567 02/22/13No. 34,030 State v. Wilson COA 28,504 02/21/13No. 34,029 State v. Warner COA 31,819 02/19/13No. 34,028 State v. Castor COA 31,819 02/19/13No. 34,024 State v. Briseno COA 31,393 02/13/13No. 34,023 State v. Garcia COA 30,852 02/13/13No. 34,021 Van Auken v. Catron COA 31,961 02/06/13No. 34,019 Van Auken v. Catron COA 31,961 02/06/13No. 34,014 State v. Trujillo COA 30,918 01/25/13No. 34,013 Foy v. Austin Capital COA 31,421 01/25/13 Response filed 2/8/13No. 34,005 State v. Kirk COA 32,272 01/17/13 Response ordered; filed 3/5/13No. 33,994 Gonzales v. Williams COA 32,274 01/14/13No. 33,943 State v. Laura J. COA 31,324/32,192 12/03/12 Response to X-Petition filed 1/8/13No. 33,868 Burdex v. Bravo 12-501 11/28/12 Response ordered; filed 1/22/13No. 33,819 Chavez v. State 12-501 10/29/12No. 33,866 Reza v. State 12-501 10/15/12 Response ordered; filed 1/28/13No. 33,863 Murillo v. State 12-501 10/10/12No. 33,867 Roche v. Janecka 12-501 09/28/12No. 33,811 Skidgel v. Hatch 12-501 09/14/12No. 33,810 Gonzales v. Marcantel 12-501 09/14/12

No. 33,539 Contreras v. State 12-501 07/12/12 Response ordered; due 10/24/12No. 33,630 Utley v. State 12-501 06/07/12

certiorari granted But not yet suBMitted to the court:(Parties preparing briefs) Date Writ IssuedNo. 32,804 State v. Servantez COA 30,414 02/07/11No. 33,001 State v. Rudy B. COA 27,589 06/08/11No. 33,046 State v. Munoz COA 30,837 07/21/11No. 33,265 State v. Garcia COA 29,338 11/17/11No. 33,548 State v. Marquez COA 30,565 05/02/12No. 33,565 State v. Ballard COA 30,187 05/02/12No. 33,571 State v. Miller COA 29,244 05/11/12No. 33,567 State v. Leticia T. COA 30,664 05/11/12No. 33,566 State v. Leticia T. COA 30,664 05/11/12No. 33,592 State v. Montoya COA 30,470 05/24/12No. 33,604 State v. Ramirez COA 30,205 06/05/12No. 33,653 Bustos v. Zia Park LLC COA 32,068 06/28/12No. 33,709 Charter Bank v. Francoeur COA 30,551 08/03/12No. 33,725 State v. Pasillas COA 31,513 09/14/12No. 33,779 State v. Vento COA 30,469 09/21/12No. 33,772 City of Albuquerque v.

Blakenship COA 31,960 09/21/12No. 33,808 State v. Nanco COA 30,788 10/12/12No. 33,796 State v. Vasquez COA 29,868 10/12/12No. 33,770 Vaughn v.

St. Vincent Hospital COA 30,395 10/12/12No. 33,856 Gray v. Cherokee Nation Industries

Professional Services LLC COA 32,194 11/02/12No. 33,847 State v. Urquizo COA 30,337 11/02/12No. 33,837 State v. Trujillo COA 30,563 11/02/12No. 33,763 State v. Almanzar COA 30,600 11/02/12No. 33,754 State v. Garcia 12-501 11/02/12No. 33,862 State v. Gerardo P. COA 31,250 11/09/12No. 33,853 State v. Dean COA 32,096 11/09/12No. 33,870 State v. Perez COA 31,678 11/16/12No. 33,792 State v.

AFSCME Council 18 COA 30,847 11/16/12No. 33,898 Bargman v. Skilled

Healthcare Group, Inc. COA 31,088 12/06/12No. 33,895 State v. Garcia COA 31,470 12/06/12No. 33,877 State v. Alvarez COA 31,987 12/06/12No. 33,874 Encinas v.

Whitener Law Firm COA 30,106 12/06/12No. 33,915 State v. Leon COA 31,067 12/26/12No. 33,884 Acosta v. Shell Western Exploration

and Production Inc. COA 29,502 12/26/12No. 33,817 Gordon v. King 12-501 12/26/12No. 33,924 AFSCME Council 18 v.

City of Albuquerque COA 30,927 01/07/13No. 33,932 State v. Finch COA 30,706 01/10/13No. 33,952 Melendez v. Salls Brothers COA 32,293 01/18/13


Writs of Certiorari http://nmsupremecourt.nmcourts.gov.

No. 33,949 Rodriguez v. Del Sol Shopping Center COA 30,421/30,578 01/18/13

No. 33,946 State v. Martinez COA 30,637 01/18/13No. 33,930 State v. Rodriguez COA 30,938 01/18/13No. 33,969 Safeway, Inc. v.

Rooter 2000 Plumbing COA 30,196 01/28/13No. 33,896 Rodriguez v. Del Sol

Shopping Center COA 30,421/30,578 01/28/13No. 33,977 State v. Calderon COA 30,844 02/08/13No. 33,970 State v. Parvilus COA 30,379 02/08/13No. 34,009 State v. Huettl COA 31,141 03/01/13No. 34,006 Janet v. Marshall COA 31,090 03/01/13No. 33,999 State v. Antonio T. COA 30,827 03/01/13No. 33,997 State v. Antonio T. COA 30,827 03/01/13No. 33,993 Fowler v. Vista Care and American

Home Insurance Co. COA 31,438 03/01/13No. 33,971 State v. Newman COA 31,333 03/01/13No. 33,938 State v. Crocco COA 31,498 03/01/13No. 33,928 Skowronski v. N.M.

Public Education Dept. COA 31,119 03/01/13

certiorari granted and suBMitted to the court:

(Submission Date = date of oral argument or briefs-only submission) Submission DateNo. 32,690 Joey P. v. Alderman-Cave

Milling & Grain Co. COA 29,120 05/11/11No. 32,696 Herbison v. Chase Bank COA 30,630 09/13/11No. 32,868 Nunez v. Armstrong

General Contractors COA 29,522 10/11/11No. 32,844 Gonzalez v. Performance

Paint, Inc. COA 29,629 10/11/11No. 32,713 Bounds v. D’Antonio COA 28,860 10/13/11No. 32,717 N.M. Farm and Livestock

Bureau v. D’Antonio COA 28,860 10/13/11No. 32,915 State v. Collier COA 29,805 11/15/11No. 32,941 Titus v.

City of Albuquerque COA 29,461 11/16/11No. 32,968 Sunnyland Farms, Inc. v.

Central N.M. Electric COA 28,807 12/12/11No. 32,860 State v. Stevens COA 29,357 01/10/12No. 33,070 Montoya v.

City of Albuquerque COA 29,838 01/30/12No. 33,023 State v. Gurule COA 29,734 01/30/12No. 32,605 State v. Franco COA 30,028 03/28/12No. 33,057 State v. Turrietta COA 29,561 04/30/12No. 33,331 Strausberg v.

Laurel Healthcare COA 29,238 05/14/12No. 33,077 State v. Gonzales COA 28,700 05/16/11No. 33,257 State v. Boyse COA 30,656/30,657 07/30/12No. 33,362 Convisser v. Ecoversity COA 30,100 08/13/12No. 33,353 Flemma v.

Halliburton Energy COA 29,933 08/14/12No. 33,372 Schultz v. Pojoaque Tribal

Police Dept. COA 28,508 08/15/12

No. 33,364 Nettles v. Ticonderoga Owners Association COA 31,342 09/10/12

No. 33,203 State v. Davis COA 28,219 09/10/12No. 33,380 City of Rio Rancho v.

Palenick COA 30,136 09/10/12No. 33,217 State v. Ramos COA 29,514 09/11/12No. 33,224 Bank of New York v.

Romero COA 29,945 09/12/12No. 33,296 State v. Gutierrez COA 29,997 09/12/12No. 33,226 State v. Olsson COA 29,713 10/31/12No. 33,014 State v. Crane COA 29,470 11/13/12No. 33,324 State v. Evans COA 31,331 11/26/12No. 33,139 State v. Polson COA 31,138 11/26/12No. 33,182 Moongate Water Co. v.

City of Las Cruces COA 27,889 12/10/12No. 33,483 State v. Consaul COA 29,559 12/17/12No. 33,382 N.M. Human Services v.

Starko, Inc. COA 29,016/27,922 01/15/13No. 33,383 Presbyterian Health Plan v.

Starko, Inc. COA 29,016/27,922 01/15/13No. 33,384 Cimarron Health Plan v.

Starko, Inc. COA 29,016/27,922 01/15/13No. 33,375 State v. Cobrera COA 29,591 01/16/13No. 33,676 City of Farmington v.

Pinon-Garcia COA 30,888 01/23/13No. 33,650 City of Farmington v.

Pinon-Garcia COA 30,888 01/23/13No. 33,711 N.M. Taxation and Revenue

Dept. v. Tindall COA 31,194 02/11/13No. 33,627 N.M. Taxation and Revenue Dept.

v. BarnesandNoble.com COA 31,231 02/11/13No. 33,579 Avalos v. N.M. Counseling and

Terapy Practice Board COA 30,611 02/12/13No. 33,677 State v. Orquiz COA 31,247 02/12/13No. 33,693 State v. Pangaea Cinema COA 30,380 02/13/13No. 33,635 Baker v.

Hedstrom COA 30,475/30,491/30,639 02/25/13No. 33,687 Elane Photography v.

Willock COA 30,203 03/11/13No. 33,611 Bank of America v.

Quintana COA 30,354 03/12/13No. 33,376 State v. Gonzales COA 29,843 03/12/13No. 33,568 State v. Chung COA 30,384 03/12/13No. 33,594 Fallick v. Montoya COA 30,172 03/13/13No. 33,589 Zhao v. Montoya COA 30,172 03/13/13No. 33,632 First Baptist Church of

Roswell v. Yates Petroleum COA 30,359 03/13/13No. 33,759 Martinez v. Public Employees

Retirement Association COA 31,310 03/25/13No. 33,487 State v. Martinez COA 30,580 03/25/13

petition for Writ of certiorari denied:

Date Order FiledNo. 34,020 Griego v. Dynamic

Systems, Inc. COA 31,518 03/07/13


noMinationS noW Being accepted

2013 State Bar annual aWardS

Send a letter of nomination for each nominee to: Joe Conte, Executive Director

State Bar of New MexicoPO Box 92860

Albuquerque, NM 87199-2860fax to 505-828-3765 or email [email protected]

Deadline for Nominations: April 30

For more information, see the Feb. 27 (Vol. 52, No. 9) Bar Bulletin

or visit www.nmbar.org/Attorneys/AM/callfornominations.pdf.

Giving Back Changes Lives

Join the network today.Email [email protected].

TLC CaresThis Legal Community Cares

Emergency Assistance

to Legal Professionals in Crisis

The New Mexico State Bar Foundation will hold a silent auction to raise money for civil legal services as part of the State Bar’s 2013 Annual Meeting in Santa Fe. Proceeds will be used to make justice work for those who need it but cannot afford it—to give everyone a fighting chance. The auction will take place June 27–28 at the Santa Fe Convention Center.

Please help by donating an auction item for the event. Anything would be greatly appreciated.

Contributors will be promoted throughout the three-day State Bar Annual Meeting, in the event program, and in the weekly Bar Bulletin, a publication mailed to more than 9,000 in the New Mexico legal community. We expect more than 400 lawyers and their guests to attend the event. Donations are tax deductible.

Contact: Michaela Chavez, 505-977-5653 • [email protected] • silentauction@

nmbar.orgor

Joe Conte, 505-797-6099 • [email protected]

S I L E N T AU C T I O N

MALSA to Honor BingaMans The University of New Mexico Mexican American Law Student Association will present Sen. Jeff Bingaman and Anne Bingaman with the Fighting for Justice Award at the 18th Annual Fight-

ing for Justice Awards Banquet April 6 at Hotel Albuquerque.

The Bingamans will receive the honor in recognition of their decades of service to the people of New Mexico and their tireless advocacy for the Hispanic and Latino communities.

The banquet attracts the state’s leading lawyers, judges, justices, law professors, and elected officials and will include live music and a silent auction. John P. Salazar, a lawyer with the Rodey Law Firm and a lifelong friend of Sen. Bingaman, will give the keynote address.

For more information or to purchase tickets, visit www.unm-malsa.org.


2013 State Bar Essay ContestThe State Bar of New Mexico would like to thank the volunteers

who generously gave their time and expertise in judging the 186 essays submitted in the 2013 State Bar Essay Contest. A special thank-you goes to Ian Bezpalko, the author of this year’s topic, and to the Young Lawyers

Division for their assistance in recruiting the panel of judges.

Erika Anderson French & Associates PCIan Bezpalko The Bezpalko Law FirmJackie Bregman Bregman & Loman PCSpencer L. Edelman Modrall Law FirmHeather Jaramillo The Jaramillo Firm LLCJ. Gayolyn Johnson State Bar of New MexicoRobert Lara The Castle Law Group LLC

Anita Letter State Bar of New MexicoSteven J. Lucero The Castle Law Group LLCMichael Osborn UNM American Indian

Law CenterEdmund E. Perea Edmund E. Perea Attorney at LawAntonia Roybal-Mack Roybal Mack Law PCPablo Seifert Olsen Parden & Crow PCBenjamin I. Sherman Ben Sherman Law LLC

Richard B. Spinello State Bar of New MexicoBonnie M. Stepleton UNM School of LawRosa Q. Valencia State Bar of New Mexico

Finalist JudgesHon. Abigail M. Aragon 4th Judicial District CourtHon. Frank A. Sedillo Metro CourtHon. Freddie Romero 5th Judicial District Court

The winners of the contest will be recognized May 1 at the annual Law Day Luncheon at the Hotel Albuquerque.


opinionsas updated By the clerk of the neW Mexico court of appeals

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


Slip Opinions for Published Opinions may be read on the Court’s website:

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

puBlished opinions

Date Opinion Filed

No. 31701 11th Jud Dist San Juan CR-11-813, STATE v A PARRISH (affirm) 3/6/2013

unpuBlished opinions

No. 32006 6th Jud Dist Luna LR-10-20, STATE v L ZUMWALT (affirm) 3/4/2013

No. 32358 8th Jud Dist Taos CV-10-598, D BOWEN v C CASTILLO (affirm) 3/5/2013

No. 32465 12th Jud Dist Lincoln CR-10-4, STATE v M SEKIYA (dismiss) 3/6/2013

No. 32538 WCA-09-3080, C POLEN v DOTCO (reverse) 3/6/2013

No. 32587 2nd Jud Dist Bernalillo, DM-12-610, B DERRINGER v D DERRINGER (affirm) 3/6/2013

No. 30115 13th Jud Dist Valencia CR-07-473, STATE v M HEPPLE (affirm in part, reverse in part and remand) 3/7/2013


Clerk’s CertifiCatesfrom the Clerk of the New mexiCo supreme Court


clerk’s certificate dated feBruary 13, 2013

Clerk’s CertifiCate of address and/or

telephone Changes

James B. Alley, Jr.PO Box 1932123 E. Marcy Street, Suite 200B (87501)Santa Fe, NM [email protected]

Mikal Melissa AltomarePNM Resources414 Silver Avenue SWAlbuquerque, NM 87102-0805505-241-0879505-241-4318 (fax)[email protected]

William Nolan Ashford3313A Shady LaneClovis, NM [email protected]

Raymond BaezaOrraj, Anderson & Obrey-Espinoza3800 E. Lohman, Suite BLas Cruces, NM 88011575-556-2960575-521-1331 (fax)[email protected]

Wendy Lee BasgallUnited South Broadway CorporationPO Box 25242Albuquerque, NM 87125-5242505-764-8867505-764-3005 (fax)[email protected]

Jesse Ryan BenoitOffice of the District Attorney520 Lomas Blvd. NWAlbuquerque, NM 87102-2118505-222-1051505-241-1051 (fax)[email protected]

Madonna N. BixbyPNM Resources414 Silver Avenue SWAlbuquerque, NM 87102-0805505-241-4929505-241-4318 (fax)[email protected]

John W. BlairOffice of U.S. Congressman Dan Kildee (MI-5)327 Cannon House Office BuildingWashington, DC 20515202-225-3611202-225-6393 (fax)[email protected]

Steven BlankinshipOffice of the Governor490 Old Santa Fe Trail, Suite 400Santa Fe, NM 87501505-476-2200505-476-2207 (fax)[email protected]

Misty M. BraswellOffice of the State EngineerPO Box 25102130 S. Capitol (87501)Santa Fe, NM 87504-5102505-827-3989505-827-3887 (fax)[email protected]

Wendy D. Buckels3212 Monte Vista NEAlbuquerque, NM 87106505-255-1100505-819-0505 (fax)[email protected]

Hon. Joseph E. Caldwell (ret.)Caldwell Law Firm LLCHCR 74 PO Box 20512El Prado, NM 87529575-613-4295575-613-4260 (fax)[email protected]

Christopher ChaneyFederal Bureau of InvestigationOffice of General Counsel1000 Custer Hollow Road, Module C-3Clarksburg, WV 26306304-625-3510304-625-3944 (fax)[email protected]

Breanon ColeJustice Legal Group1516 San Pedro NEAlbuquerque, NM [email protected]

B.J. CrowCrow Law Firm400 North Pennsylvania Avenue, Suite 1150Roswell, NM 88201575-291-0200575-291-0201 (fax)[email protected]

Annamarie DeLovatoN.M. Children, Youth and Families DepartmentPO Box 2135760 N. Motel Blvd., Suite ALas Cruces, NM 88004-2135575-373-6406575-373-6550 (fax)[email protected]

Diego Roman EsquibelThe Barnett Law Firm PA1905 Wyoming Blvd. NEAlbuquerque, NM 87112505-275-3200505-275-3837 (fax)[email protected]

Karolyn King GillespieEP EnergyPO Box 46601001 Louisiana Street (77002)Houston, TX 77210-4660713-997-3949713-445-7509 (fax)[email protected]

Michael R. HeitzN.M. State Personnel Office2600 Cerrillos RoadSanta Fe, NM 87505505-795-5575505-476-7806 (fax)[email protected]

Ryan HiltonAFJAGSOperations and International Law Division150 Chennault CircleMaxwell AFB, AL [email protected]

Loni J. HodgeN.M. Center on Law and Poverty720 Vassar Drive NEAlbuquerque, NM [email protected]

Heather S. JaramilloThe Jaramillo Firm LLC1110 Second Street NWAlbuquerque, NM 87102-1952505-792-4048505-792-2268 (fax)[email protected]

Judith Miller KasperNatelson Law Firm411 Camino de la PlacitaTaos, NM 87571575-758-4844575-758-9283 (fax)[email protected]

Kallie D. KuehlPNM Resources414 Silver Avenue SWAlbuquerque, NM 87102-0805505-241-0733505-241-4318 (fax)[email protected]

Hon. Darren M. KuglerThird Judicial District Court201 W. Picacho AvenueLas Cruces, NM 88005-1833575-523-8240575-528-8331 (fax)


Clerk’s CertifiCates http://nmsupremecourt.nmcourts.gov.

Julita Ann LeavellPO Box 40025Albuquerque, NM [email protected]

Thomas R. LoganCoppler Law Firm PC645 Don Gaspar AvenueSanta Fe, NM 87505505-988-5656505-988-5704 (fax)[email protected]

Hon. Brett LovelessSecond Judicial District CourtPO Box 488400 Lomas Blvd. NW (87102)Albuquerque, NM 87103-0488505-841-7499505-841-7455 (fax)

Jeffrey Raymond McCombs1012 BelmontKennedale, TX 76060972-978-8959972-978-8959 (fax)[email protected]

Shaharazad Elaine McDowellOffice of the District Attorney108 E. Poplar StreetDeming, NM 88030575-546-6526575-546-0336 (fax)[email protected]

Patrick C. McNertney1400 Barbara Loop SE, #CRio Rancho, NM 87124-1088

Mary R. [email protected]

Tonya M. OliverAllina Health2925 Chicago AvenueMail Route 10905Minneapolis, MN 55407-1321612-262-5419612-262-4264 (fax)[email protected]

Kurt C. Olsen5807 Corte MargaritaPleasonton, CA [email protected]

Bryan Agustin OteroN.M. Finance Authority207 Shelby StreetSanta Fe, NM 87501505-984-1454505-992-9635 (fax)[email protected]

John Theodore PalterPalter Stokley Sims Wright PLLC5949 Sherry Lane, Suite 1616Dallas, TX 75225214-478-9280214-722-1077 (fax)[email protected]

Wesley O. PoolPool Law Firm PC201 Innsdale TerraceClovis, NM 88101575-762-8300575-762-3173 (fax)[email protected]

Taylor L. PopeHarris, Finley & Bogle PC777 Main Street, Suite 3600Fort Worth, TX 76102817-870-8700817-332-6121 (fax)[email protected]

Sabrina PriceUS Law Group LLP17220 N. Boswell Blvd., Suite 103Sun City, AZ 85379

Aaron A. RodriguezJustice Legal Group1516 San Pedro Drive NEAlbuquerque, NM [email protected]

Darby Lynn SaisN.M. Human Services DepartmentChild Support Enforcement Division1015 Tijeras Avenue NW, Suite 100Albuquerque, NM 87102800-288-7207505-222-9480 (fax)[email protected]

Daniel J. Sanchez620 Roma NWAlbuquerque, NM 87102-2037505-553-0466505-246-2668 (fax)[email protected]

Janice Burt SchryerOffice of the District Attorney108 E. Poplar StreetDeming, NM 88030575-546-6526575-546-0336 (fax)[email protected]

Sanford H. SiegelSanford H. Siegel PC202 Girard Blvd. SEAlbuquerque, NM 87106505-232-0099505-232-0060 (fax)[email protected]

Kimberly M.J. SimsPalter Stokley Sims Wright PLLC5949 Sherry Lane, Suite 1616Dallas, TX 75225972-800-9141214-722-1077 (fax)[email protected]

Hon. Beverly J. SinglemanDona Ana Magistrate Court111 Calle de AlegraLas Cruces, NM 88005575-524-2814

Diane D. Strader1442 Wellesley Drive NEAlbuquerque, NM [email protected]

John P. SuggOffice of the District AttorneyPO Box 893300 Central AvenueCarrizozo, NM 88301-0893575-648-2383575-648-2611 (fax)[email protected]

Sonny Ray SwazoOffice of the State EngineerPO Box 25102130 S. Capitol Place (87501)Santa Fe, NM 87504-5102505-827-3822505-827-4200 (fax)[email protected]

Charles Ray Thompson4009 Inca NEAlbuquerque, NM 87111505-291-8620505-296-8007 (fax)[email protected]

Stephen R. Villanueva385 Manhattan DriveBoulder, CO [email protected]

Michael S. WilliamsOffice of the Attorney General111 Lomas Blvd. NW, Suite 300Albuquerque, NM 87102-2368505-222-9091505-222-9086 (fax)[email protected]

James R. WoodGoodwill Industries of New Mexico, Inc.5000 San Mateo Blvd. NEAlbuquerque, NM 87109-2499505-881-6401505-314-1938 (fax)[email protected]

Hon. Briana ZamoraSecond Judicial District CourtPO Box 488400 Lomas Blvd. NW (87102)Albuquerque, NM 87103-0488505-841-7484505-841-5456 (fax)

David Zenner3622 Canyon Village CircleSan Ramon, CA [email protected]

David C. ZimmermanPNM Resources414 Silver Avenue SWAlbuquerque, NM 87102-0805505-241-4659505-241-4318 (fax)[email protected]



recent rule-Making activityas updated By the clerk of the neW Mexico supreMe court


pending proposed rule changes open for coMMent:

Comment DeadlineNone

recently approved rule changes since release of 2012 nMra:

Effective Date

rules of civil procedure for the district courts

1-042 Consolidation; separate trials 01/07/131-088.1 Peremptory challenge to a district judge; recusal; procedure for exercising 01/07/131-125 Domestic Relations Mediation Act programs 01/07/131-096 Challenge of nominating petition 03/01/121-030 Depositions upon oral argument 02/17/12 1-001 Scope of rules; definitions 02/06/121-004 Process 02/06/12

civil forMs

4-206 Summons 01/07/134-805 Application for writ of garnishment 01/07/124-806 Writ of garnishment 01/07/134-807 Answer by garnishee 01/07/134-812 Judgment on writ of garnishment, claim of exemption and order to pay 01/07/134-805B Withdrawn 01/07/134-967 Custody, support and division of property order attachment 01/07/13 4-968 Application to modify, terminate or extend the order of protection from domestic abuse 01/07/13

rules of criMinal procedure for the district courts

5-508 Notice of alibi; entrapment defense 01/07/135-826 Appeals from magistrate or municipal court 08/03/125-827 Appeals from metropolitan court 08/03/125-828 Appeals from magistrate, metropolitan or municipal court; dismissals for failure to comply with rules or failure to appear 08/03/125-829 Audio recordings of proceedings; appeals on the record 08/03/125-830 Statement of appellate issues; appeals on the record 08/03/125-831 Scope of review by district court; appeals on the record 08/03/125-208 Issuance of warrant for arrest and summons 06/29/125-211 Search warrants 06/29/125-502 Disclosure by the defendant 02/06/12

rules of criMinal procedure for the Magistrate courts

6-702 Advising defendant of right to appeal 08/03/126-703 Appeal 08/03/126-705 Withdrawn-Appeals; dismissals for failure to comply with rules or failure to appear 08/03/126-503 Disposition without hearing 01/31/12

rules of criMinal procedure for the Metropolitan courts

7-702 Advising defendant of right to appeal 08/03/127-703 Appeal 08/03/127-705 Withdrawn-Tape recordings of proceedings; appeals on the record 08/03/127-706 Withdrawn-Statement of appellate issues; appeals on the record 08/03/127-707 Withdrawn-Scope of review by district court; appeals on the record 08/03/127-709 Withdrawn-Appeals; dismissals for failure to comply with rules or failure to appear 08/03/127-503 Disposition without hearing 01/31/12

rules of procedure for the Municipal courts

8-702 Advising defendant of right to appeal 08/03/128-703 Appeal 08/03/128-705 Withdrawn-Appeals; dismissals for failure to comply with rules or failure to appear 08/03/128-503 Disposition without hearing 01/31/12

criMinal forMs

9-403A Conditional order of appointment 01/07/139-104B Appearance, plea and waiver 01/31/12

children’s court rules and forMs

10-426 Withdrawn 11/08/1210-427 Withdrawn 11/08/1210-111 Motions; how and when presented 01/07/1310-262 Sealing of records under Section 32A-2-26 NMRA 1978 01/07/1310-341 Witness immunity 01/07/1310-342 Admissions, including no contest pleas, and consent decrees 01/07/13Form 10-420 Sealing order 01/07/1310-223A Physical restraints in the courtroom 04/09/12

rules of evidence

11-102 Purpose and construction 06/16/1211-103 Rulings on evidence 06/16/1211-104 Preliminary questions 06/16/1211-105 Limiting evidence that is not admissible against other parties or for other purposes 06/16/1211-106 Reminder of or related writings or recorded statements 06/16/12


Rule-Making activity http://nmsupremecourt.nmcourts.gov.

11-107 Comment by court 06/16/1211-201 Judicial notice of adjudicative facts 06/16/1211-301 Presumptions in civil cases generally 06/16/1211-302 Presumption in criminal cases 06/16/1211-401 Test for relevant evidence 06/16/1211-402 General admissibility of relevant evidence 06/16/1211-403 Excluding relevant evidence for prejudice, confusion, waste of time, or other reasons 06/16/1211-404 Character evidence; crimes or other acts 06/16/1211-405 Methods of proving character 06/16/1211-406 Habit; routine practice 06/16/1211-407 Subsequent remedial measures 06/16/1211-408 Compromise offers and negotiations 06/16/1211-409 Offers to pay medical and similar expenses 06/16/1211-410 Pleas, plea discussions, and related statements 06/16/1211-411 Liability insurance 06/16/1211-412 Sex crimes; testimony; limitations; in camera hearing 06/16/1211-413 Use of evidence obtained under immunity order precluded 06/16/1211-601 Competency to testify in general 06/16/1211-602 Need for personal knowledge 06/16/1211-603 Oath or affirmation to testify truthfully 06/16/1211-604 Interpreter 06/16/1211-605 Judge’s competency as a witness 06/16/1211-606 Juror’s competency as a witness 06/16/1211-607 Who may impeach a witness 06/16/1211-608 A witness’s character for truthfulness or untruthfulness 06/16/1211-609 Impeachment by evidence of a criminal conviction 06/16/1211-610 Religious beliefs or opinions 06/16/12 11-611 Mode or order of examining witnesses and presenting evidence 06/16/1211-612 Writing used to refresh a witness’s memory 06/16/1211-613 Witness’s prior statement 06/16/1211-614 Court’s calling or examining a witness 06/16/1211-615 Excluding witnesses 06/16/1211-701 Opinion testimony by law witnesses 06/16/1211-702 Testimony by expert witnesses 06/16/1211-703 Bases of an expert’s opinion testimony 06/16/1211-704 Opinion on an ultimate issue 06/16/1211-705 Disclosing the facts or data underlying an expert’s opinion 06/16/1211-706 Court-appointed expert witnesses 06/16/1211-707 Polygraph examinations 06/16/1211-801 Definitions that apply to this article; exclusions from hearsay 06/16/1211-802 The rule against hearsay 06/16/1211-803 Exceptions to the rule against hearsay– regardless of whether the declarant is available as a witness 06/16/1211-804 Exceptions to the rule against hearsay–when the declarant is unavailable as a witness 06/16/1211-805 Hearsay within hearsay 06/16/1211-806 Attacking and supporting the declarant’s credibility 06/16/1211-807 Residual exception 06/16/12

11-901 Requirement of authentication or identification 06/16/1211-902 Evidence that is self-authenticating 06/16/1211-903 Subscribing witness’ testimony 06/16/1211-1001 Definitions that apply to this article 06/16/1211-1002 Requirement of the original 06/16/1211-1003 Admissibility of duplicates 06/16/1211-1004 Admissibility of other evidence of content 06/16/1211-1005 Copies of public records to prove content 06/16/1211-1006 Summaries to prove content 06/16/1211-1007 Testimony or statement of a party to prove content 06/16/1211-1008 Functions of the court and jury 06/16/1211-1101 Applicability of the rules 06/16/1211-1102 Title 06/16/12

rules of appellate procedure

12-210 Calendar Assignments 01/07/1212-211 Transcript of proceedings 01/07/1212-302 Appearance, withdrawal or substitution of attorneys; change of address or telephone number 01/07/1312-212 Exhibits and depositions; general calendar cases 08/03/1212-603 Appeals in actions challenging candidates or nominating petitions; primary or general elections; school board recalls and recalls of elected county officials 03/05/1212-405 Opinions 03/01/1212-309 Motions 04/20/12

uJi–civil

13-815 Promissory estoppel; definition 01/07/1313-2304 Retaliatory discharge 05/26/1213-2006 All jurors to participate 05/19/1213-2320 Special verdict form for wrongful discharge cases 05/19/1213-832 Good faith and fair dealing 05/12/12

uJi–civil

14-5131 Duress; no defense to homicide 01/07/13

rules governing adMission to the Bar

15-301.2 Legal services provider limited law license 01/01/12

rules governing discipline

17-206 Types of discipline 03/05/1217-209 Resignation by attorneys under investigation 04/05/1217-210 Reciprocal discipline 04/05/1217-212 Resigned, disbarred or suspended attorneys 04/05/1217-213 Appointment of counsel 04/05/1217-214 Reinstatement 04/05/1217-306 Required presence of attorney; subpoena power 04/05/1217-307 Investigation of complaints 04/05/1217-313 Hearings 04/05/12


Rule-Making activity http://nmsupremecourt.nmcourts.gov.

rules governing the client protection fund

17A-005 Composition and officers of the commission 01/01/12

rules of legal specialization

19-101 Board of Legal Specialization; title 01/01/12

rules governing the recording of Judicial proceedings

22-101 Scope; definitions; title 01/27/1222-203 Application; qualifications; renewal of certification 01/27/1222-501 Examination standards 01/27/12

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.

supreMe court general rules

23-106 Supreme Court rules committees and rule-making procedures 07/01/13

rules for revieW of Jsc

27-401 Disposition 03/05/12

2013 Annual Meeting – Bench and Bar Conference Preview 1

Bench and Bar: Improving the Quality

of Justice Together

Santa Fe Community Convention Center June 27-29, 2013

2013 Annual Meeting— Bench and Bar Conference

www.nmbar.org

Santa Fe Community Convention Center201 W. Marcy Street, Santa Fe, NM 87501

T he convention center is a state-of-the-art facility with fireplaces in some rooms, underground parking, and

open interior courtyard, wireless connectivity, and high-speed data lines. Santa Fe is nestled in the Sangre de Cristo Mountains, the southern most sub-range of the Rocky Mountains, at an altitude of 7,000 feet. Thousands of acres of national forest and wilderness surround the city, yet it is only an hour’s drive from Albuquerque.

Shuttle service will be provided from the Inn at Loretto and Eldorado Hotel to and from the convention center throughout the event.

2

Make it a getawaywhere business, culture,

and relaxation meet!

Plenary Session: Taking Care of Yourself, Your Practice and Your ClientsThe lawyer “racket” is a tough business. Attendees will hear real-life experiences of how the stresses of the law can take a toll on one’s practice and life. In addition, the State Bar Ethics Advisory Committee will discuss three “outs” of a case or practice for lawyers, either through retirement,

incapacity or death, or just wanting to fire a client. Succession planning and easing out of the profession when necessary will be addressed by prominent New Mexico physicians. An introduction to the Client Protection Commission will be discussed as a means of protecting the public when things go terribly wrong.

Plenary Session: Judicial Recusals in New Mexico: Good Idea or Bad?Unique to New Mexico, any judge can be recused from a case by any attorney for any reason. Most jurisdictions require some

rationale for removing a judge. This interactive panel of judges and lawyers will discuss the rule—pros and cons—and address written questions submitted by participants.

Plenary Session: Measurement Science in Forensic Firearms AnalysisWith increasing frequency in civil and criminal litigation, forensic evidence

is offered to support a connection between evidence and an individual or source. In this program, attorneys will direct and cross-examine an expert who will offer testimony identifying a particular weapon as the source of both a crime-scene bullet and a known bullet. Firearms identification was chosen as the topic for the demonstration on how to introduce and challenge the admissibility of scientific evidence because a recent National Academy of Science Report was critical of measurement science relating to the identification of firearms.

Featured Presentations

Featured SpeakersDean Barbara BergmanBarbara Bergman joined the UNM law faculty in 1987, bringing years of experience as a criminal defense lawyer with the Public Defender Service in Washington, D.C. Her teaching remains focused on criminal law. Bergman has lectured and published ex-tensively, including serving as editor of the

5th edition of the D.C. Criminal Jury Instructions. She also is the co-author of Wharton’s Criminal Evidence, 15th edition; Wharton’s Criminal Procedure, 14th edition; and The Everytrial Criminal De-fense Resource Book.

Ben HoldenBen Holden is director of the Center for Courts & Media and professor of journalism at the National Judicial College. He is a former reporter for The Wall Street Journal. Holden attended the University of Missouri School of Journalism; the University of California, Berkeley; and U.C. Berkeley School of Law.

He practiced law with Cooper, White & Cooper and with the firm formerly known as Weissburg and Aronson in Los Angeles.

Carole A. Levitt and Mark E. RoschCarole A. Levitt and Mark E. Rosch, principals of Internet for Lawyers, are internationally recog-nized CLE seminar speakers and best-selling ABA authors. They are

experts on Internet investigative and legal research, social media research, social media ethics, Google search and Cloud Apps, and technology for lawyers. Levitt and Rosch have co-authored sever-al ABA LPM books. Previously, Levitt was a California attorney, a law librarian in Chicago and Los Angeles, and a legal research and writing professor at Pepperdine University School of Law. In addition to speaking and writing books and articles, Rosch blogs and tweets about legal technology issues.

Professor Max MinznerA native New Mexican, Max Minzner is an associate professor of law at the University of New Mexico School of Law and teaches and writes in the areas of civil procedure, criminal law, and criminal procedure. He frequently presents annual updates on civil

procedure to the New Mexico Judicial Conclave.

3

Make it a getawaywhere business, culture,

and relaxation meet!

1 p.m.CLE BREAKOUTS

Problem-Solving Therapeutic Courts: A Model for Bench and Bar CollaborationJudge John J. Romero, Jr., and Alison B. Pauk, Esq.

Wills for Heroes and Serving Our Seniors Workshop: Improving the Quality of YLD Public Service Projects TogetherGreg L. Gambill, Esq., Sara Traub, Esq., and Kate Fitz Gibbon, Esq.

You Gotta Know When to Hold 'Em and Know When to Fold 'Em: Negotiation Strategy and Tactics for Today's Litigation PracticeNorman L. Gagne, Esq.

Information Law Topics: eDiscovery and Privacy Corey S. Reitz, Esq., and Rusty Elliott, Esq.

The Changing Law Practice: Work Smarter Not HarderGini Nelson, Esq.; James L. Cook, Esq.; and Ian Bezpalko, Esq.

1 p.m.N.M. Women’s Bar Association Meeting

2 p.m.Break 2:15 p.m.CLE BREAKOUTS

Basics of Registration of Sex OffendersJudge Kenneth Martinez; Michael Fricke, Deputy DA; Kari Brandenburg, DA; Sophie Cooper, PD; and Sheriff Deputy Robert Bolin

Cy Pres: Impact on JusticeTBA

Taking the Right Steps—and Avoiding Missteps—Before and After You File a Notice of AppealTBA

A Review of Changes in Federal Tax Law Through June 2013 and Forecast Changes to ComeEdward B. Hymson, Esq.

2:15 p.m.Disciplinary Board Training

2:30 p.m.N.M. Hispanic Bar Association Annual Meeting 3:15 p.m.Break

3:30 p.m.CLE BREAKOUTS

Federal Indian Law 101TBA

Access to Justice: Providing Legal Services to the PoorJudge Sarah M. Singleton

Using ADR to Cultivate Highly Effective Work TeamsJosh Pando, Esq., and Mary Jo Lujan, Esq.

Cyber Forensics and Security: What Every Legal Professional Needs to KnowSrinivas Mukkamala, Ph.D., and Mark J. Fidel, Esq.

The Basics of Commercial LeasesLinda Isaida Leyba, Esq.

THURSDAY, JUNE 27

9 a.m.Finance Committee Board of Bar Commissioners Meeting

1 p.m.Golf Tournament

3:30 p.m.Senior Lawyers Division Annual Meeting 4–7:30 p.m.Registration/Exhibits/Silent Auction 6–7:30 p.m.Opening Reception FRIDAY, JUNE 28

7–8 a.m.Breakfast Buffet

7–8 a.m.Friends of Bill Meeting 7 a.m.–5 p.m.Registration/Exhibits 7 a.m.–7 p.m.Silent Auction 8 a.m.Introductory RemarksAndrew J. Cloutier, President, State Bar of New Mexico Hon. Petra Jimenez Maes, Chief Justice, New Mexico Supreme CourtGov. Susana Martinez (invited)

8:30 a.m.Plenary: Taking Care of Yourself, Your Practice and Your Clients

10:30 a.m.Break

10:45 a.m.Plenary: Judicial Recusals in New Mexico: Good Idea or Bad?

11:45 a.m.Judicial Performance Evaluation Commission 2014 Final EvaluationsJudge James Hall and Denise Torres, Esq.

12 p.m.

Lunch (ticketed)

Disciplinary Board Meeting

Paralegal Division Lunch

Schedule

4

4:30 p.m.Adjourn

4:45–5:30 p.m.Annual Awards Ceremony 5:30–6:30 p.m.Atkinson & Kelsey Reception Honoring New Mexico Lawyers Listed in Best Lawyers in America

5:30–6:30 p.m.Texas Tech Law Alumni and Friends Reception

6:30–9 p.m.President’s Reception and Dinner

7 p.m.Silent Auction Closes SATURDAY, JUNE 29

7–8 a.m.Breakfast Buffet 7 a.m.–3 p.m.Registration/Exhibits/Distribution of Silent Auction Items

8 a.m.Plenary: Measurement Science in Forensic Firearms Analysis 10 a.m.Break 10:15 a.m.Young Lawyers Division Board Meeting

10:15 a.m.Civil UpdateMax Minzner

10:15 a.m.Criminal UpdateBarbara Bergman

10:15 a.m.ADR UpdateDavid Levin, Chair, ADR Committee

11:15 a.m.Break 11:30 a.m.Plenary: 60 Sites in 60 MinutesCarole A. Levitt, Esq., and Mark E. Rosch

12:30 p.m.Lunch on your own

5


New Mexico State Agencies and Animals: Avoiding Bungles in the JungleHelga Schimkat, Esq., and Judith L. Durzo, Esq.

New Mexico Commission on Access to Justice Workshop: Improving the Quality of Civil Legal Services for Veterans TogetherJennifer Broomfield, Esq., and Margaret Middleton, Esq.

Avoidance and Early Resolution of Employment Claims for You and Your Clients James Cook, Esq., and Erin Langenwalter, Esq.

2013 Family Law UpdateJon A. Feder, Esq., and Thomas C. Montoya, Esq.

How to Avoid Bad Cases and How to Get Out of Them GracefullyDon Becker, Esq.

2:30 p.m.Plenary: Justice Served? Why the Third Branch of Government Needs the Fourth EstateBen Holden, Esq.

3:30 p.m.Break


Case Evaluation: Keys to SuccessJoseph L. Romero, Esq., and Eric R. Miller, Esq.

Basics of Environmental Justice: Providing Access to Justice for Those Threatened by Environmental HarmEileen Gauna, Esq.

Update on the Automatic Stay for the General PractitionerJudge David T. Thuma

Lawyers Leaving Law Firms and Law Firm BreakupsGerald G. Dixon, Esq., and Maureen A. Sanders, Esq.

4:45 p.m.Adjourn

8:30 p.m.Santa Fe Opera: The Marriage of Figaro (ticketed)

Special Events

6

Golf TournamentThursday, June 27 • 1 p.m. (ticketed)The Club at Las Campanas132 Clubhouse Drive, Santa Fe, NM 87506Golf rises to a new level on The Club at Las Campanas’ two Jack Nicklaus Signature golf courses, both consistently rated among the top courses in New Mexico by Golf Digest. Each of the award-winning, 18-hole courses offers an unparalleled golfing experience enhanced by glorious mountain vistas.

Thursday, June 27 • 4–7:30 p.m. and Friday, June 28 • 7 a.m.–7 p.m.The New Mexico State Bar Foundation will hold a silent auction to raise money for civil legal services. The Bar Foundation helps families and individuals get the civil legal service help they need. Funds raised are used to make justice work for those who need it but cannot afford it.

Opening ReceptionThursday, June 27 • 6-7:30 p.m.Mingle and network with friends, colleagues, Board of Bar Commissioners, and exhibitors of legal–related products and services. Enjoy hors d’oeuvres and drinks.

Music provided by Pimentel Guitars, Music and EntertainmentHector Pimentel is an internationally rec-ognized master guitarist. Pimentel’s dream of moving people emotionally is reflected in the heart he puts into his music and by the audiences who love him worldwide.

Annual Awards CeremonyFriday, June 28 • 4:45–5:30 p.m.Awards recognize exemplary contributions to the State Bar or the legal profession.

President’s Reception and Dinner Entertainment by the Tejas BrothersFriday, June 28 • 6:30–9 p.m. (ticketed)Join President Andrew J. Cloutier, fellow members, and friends at a reception featuring a buffet dinner and entertainment. The Tejas Brothers reach your heart and

poke your funny bone. Their sound is unique, yet familiar. It’s like something brand new on top of something we’ve all known and loved forever.

The Santa Fe Opera/Preview Buffet DinnerSaturday, June 29 • 8:30 p.m. (ticketed)The Marriage of FigaroThe Marriage of Figaro is of endless appeal to audiences and scholars alike. John Nelson conducts. The Preview Buffet Dinner begins at 6 p.m. Tickets must be purchased by May 15. Transportation is available for $20/person and may be purchased at www.santafeopera.org.

S I L E N T AU C T I O N

Cyber StopRecharge your mobile device, review your email, surf the web, download materials, etc.

Extras

Lodging Information

Secure your rooms early and take advantage of the special rates until June 4.Mention “State Bar of New Mexico.”

Inn and Spa at Loretto211 Old Santa Fe Trail

1-866-582-1646$199 single/double

http://tinyurl.com/c8bfaqy

Eldorado Hotel & Spa309 West San Francisco St.

1-800-955-4455$189 single/double

www.eldoradohotel.com

7

8 2013 Annual Meeting – Bench and Bar Conference Preview

Name ____________________________________________________________________________ SBNM Bar No. ______________________

Name for Badge (if different than above) _________________________________________________________________________________

Address ____________________________________________________________________________________________________________

City _________________________________________________________________________ State _______________ ZIP _______________

Phone ______________________________ Fax ______________________________ Email ________________________________________

Guest 1 _______________________________ Guest 2 _______________________________ Guest 3 _______________________________ Name badge required to attend all functions.

REGISTRATION FEES Price Qty. SubtotalIncludes CLE tuition, materials, MCLE filing fees, continental breakfasts, breaks, and opening reception.

r Standard Early Registration Fee (Must be postmarked by May 15.) $375 ______ ______r After May 15 Fee $450 ______ ______r YLD, Paralegal, Government and Legal Services Attorney $250 ______ ______r After May 15, YLD, Paralegal, Government and Legal Services Attorney $325 ______ ______r Daily Registration Fee $250 ______ ______r Guest (includes name badge, continental breakfasts, breaks and receptions) $95 ______ ______

Conference Materials. I would like :r Reusable Flash Drive with updates on the web (included in registration fee) ______ ______ r Printed Version $25 ______ ______

SEPARATELY TICKETED EVENTSr Golf Tournament, Thursday, June 27 (18-hole) (Handicap/Average Golf Score ________) $150 ______ ______

r I will set up my own team. Players are: ________________________ ________________________ ________________________

r I would like to be placed on a team.

r President’s Reception/Dinner, Friday, June 28 $50 per ticket ______ ______ (Children under 12, free) ______ ______

r Santa Fe Opera: The Marriage of Figaro, Saturday, June 29 Section 2 (main floor) $175 per ticket ______ ______ Section 7 (balcony/mezzanine) $110 per ticket ______ ______

r Santa Fe Opera Preview Buffet Dinner, Saturday, June 29 $55 per ticket ______ ______

TOTAL $______PAYMENT OPTIONSr Enclosed is my check in the amount of $ __________________ (Make checks payable to: State Bar of New Mexico)r VISA r Master Card r American Express r Discover r Purchase Order (Must be attached to be registered)

Credit Card Acct. No. _______________________________________________________________________ Exp. Date __________________

Signature _______________________________________________________________ Billing Zip Code _______________ CVV# _________

Register by mail or fax.MAIL: SBNM, PO Box 92860, Albuquerque, NM 87199-2860 FAX: 866-767-7281Cancellations and Refunds: If you find that you must cancel your registration, send a written notice of cancellation via fax by 5 p.m., one week prior to the program of interest. A refund, less a $50 processing charge, will be issued. Registrants who fail to notify CLE by the date and time indicated will receive a set of course materials via mail following the program.MCLE CREDIT INFORMATION: Courses have been approved by the New Mexico MCLE Board. Hotel information is available on page 7 of this brochure.

2013 Annual Meeting—Bench and Bar ConferenceSanta Fe Community Convention Center • June 27-29, 2013

Bench and Bar: Improving the Quality of Justice Together12.0 G and 2.0 EP CLE Credits


AdvAnce OpiniOnsFrOm the new mexicO supreme cOurt And cOurt OF AppeAls

http://www.nmcompcomm.us/

Certiorari Denied, January 11, 2013, No. 33,918


Opinion Number: 2013-NMCA-023

Topic Index:Appeal and Error: Appellate Review; Remand; Standard of Review;

and Substantial or Sufficient EvidenceCivil Procedure: Findings and Conclusions; and Special Master

Government: State EngineerNatural Resources: Crops and Produce; Irrigation; and Water Law

STATE OF NEW MEXICO ex rel. OFFICE OF THE STATE ENGINEER, THOMAS C. TURNEY,

Plaintiffs-Appellees,versus

UNITED STATES OF AMERICA, ELEPHANT BUTTE IRRIGATION DISTRICT, CITY OF EL PASO,

NEW MEXICO STATE UNIVERSITY, STAHMAN FARMS, OTHER CLAIMANTS TO BE DETERMINED,

and UNKNOWN CLAIMANTS,Defendants,

andJOHN D. BACA,

Subfile Defendant-Appellant.No. 30,824 (filed October 24, 2012)

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTYJERALD A. VALENTINE, District Judge

DL SANDERSSpecial Assistant Attorney General

RICHARD A. ALLENSpecial Assistant Attorney General

MARTHA C. FRANKSSpecial Assistant Attorney General

Santa Fe, New Mexicofor Appellees

LEE E. PETERSPETERS LAW FIRM, L.L.C.Las Cruces, New Mexico

for Appellant

opinion

cynthia a. fry, Judge

{1} This case involves a dispute over owner-ship of a ground water right on approximately

twenty-eight acres of elevated bench lands on Appellant John D. Baca’s farm property in Salem, New Mexico. In the course of a sub-file proceeding initiated by the Office of the State Engineer (OSE) in order to determine ownership of water rights on Baca’s farm, the

district court appointed a special master to try the matter. The special master filed a report recommending that the district court grant ownership of the disputed water right to Baca. Upon the OSE’s written objections to the report, the district court rejected the special master’s report in part and then entered an order declaring that Baca did not have a water right on the disputed bench lands.{2} Baca appeals, arguing that the district court was bound by the factual findings and legal conclusions entered by the special master and that the court improperly re-weighed the evidence and applied an erroneous standard of review in rejecting the special master’s report. We agree and conclude that the district court’s actions were improper under the standard of review established by our case law. We therefore reverse the district court’s order and remand for the district court to consider the OSE’s remaining objection on the issue of abandonment of the water right.I. BACKGROUND{3} The present case arose as a subfile proceed-ing in the course of a general adjudication of water rights in the lower Rio Grande stream system.1 At issue in this particular subfile proceeding is a disputed water right on Baca’s farm in Salem, New Mexico. Baca purchased the 132-acre farm in 1981. For purposes of the subfile proceeding, Baca’s property was divided into two distinct areas: (1) the “valley lands,” consisting of forty-two acres; and (2) the “bench lands,” consisting of approximately twenty-eight acres that were terraced into eighteen benches that took the shape of a chevron when viewed from the air. The subfile for Baca’s property consists of five water rights, only one of which is at issue in this appeal. This disputed water right is associated with the bench lands and, more specifically, it is the right to ground water produced from a well for the upper sixteen benches (the disputed benches) on Baca’s property.{4} Over the span of four years beginning in 2001, the OSE sent a series of offers of judgment to Baca during the subfile phase of the adjudication in order to reach an agree-ment on this disputed water right. When the parties were unable to come to an agreement on this water right, the district court referred

1Adjudications are generally “lawsuits in state or federal court to resolve all claims to water use in the state of New Mexico including those of pueblos, tribes and the federal government.” Denise D. Fort, The Utton Center, Water Matters!, Adjudications 4-1 (2012), available at http://uttoncenter.unm.edu/pdfs/Water-Matters -2012/2012_water_matters_final_full-publication.pdf. During the subfile phase of an adjudication, the Office of the Attorney General (through the use of OSE-specific adjudication teams) determines the elements of individual water rights for each claimant. Fort, supra, 4-2 to 4-3. Each “subfile” corresponds to an individual claimant, such as Baca in this case, or a city or Native American tribe. See Fort, supra, 4-3.


the matter to a special master pursuant to its authority under Rule 1-053 NMRA. {5} Rule 1-053 governs the appointment and use of special masters in district court proceedings. In non-jury cases, a district court is permitted to refer a matter to a special master upon a showing of an exceptional condition or “in matters of account and of difficult computation of damages.” Rule 1-053(B). In this case, the district court appointed at-torney Stephen Snyder as special master after determining that exceptional conditions war-ranted the referral. The district court’s order of reference directed the special master to “hear and determine all claims and contentions of the parties” and to “make findings of fact and conclusions of law and prepare and file a report” with the court at the conclusion of the proceedings. See Rule 1-053(E)(1) (requiring the special master to prepare a report on the matter submitted to him and file the report with the court).{6} The parties tried two issues before the special master: (1) whether a predecessor in interest to Baca established a ground water right on the disputed benches and, if so, (2) whether Baca abandoned this water right. In the proceedings before the special master, the OSE took the position that a water right was never established for the disputed benches because water from the well was not put to beneficial use on these benches. See Hydro Res. Corp. v. Gray, 2007-NMSC-061, ¶ 21, 143 N.M. 142, 173 P.3d 749 (stating the general principle that “[g]round water, like surface water, must be appropriated and applied to beneficial use before a vested water right will result”). Alternatively, the OSE claimed that Baca had abandoned any water right that may have once existed on the disputed benches. Over the course of a three-day trial before the special master, the parties presented tes-timony from lay and expert witnesses as well as documentary evidence in the form of aerial photographs and affidavits in support of their positions.{7} Following the hearing, the special master filed a report with the district court in which he found that irrigation ground water rights were established on the disputed benches and that Baca had not abandoned this water right. The OSE objected to the special master’s report and, following a hearing, the district court entered an order rejecting in part the special master’s report.{8} The district court disagreed with a ma-jority of the special master’s findings of fact concerning the testimony and documentary evidence presented at trial. In particular, the district court found that “the record d[id] not support [t]he [s]pecial [m]aster’s [f ]indings

that irrigation water has ever been used to grow a crop on the disputed bench lands.” The district court also rejected the special master’s reliance on a declaration of water rights filed by Baca shortly after the farm purchase. In addition, the court rejected the special master’s conclusion that water was put to beneficial use on the disputed benches. The district court held that Baca did not have a water right on the disputed bench lands. Because the court determined that a ground water right had not been established on the disputed bench lands, the court did not address the OSE’s objections to the special master’s findings on abandonmennt. This appeal followed.II. DISCUSSION{9} On appeal, Baca’s overarching argument is that the district court improperly disregarded the special master’s report. Specifically, Baca argues that the district court was bound by the factual findings entered by the special master because the findings were supported by substantial evidence and that the court im-properly re-weighed the evidence and applied an erroneous standard of review in rejecting the special master’s report. After delineating the proper standard of review in this case, we examine whether the district court’s specific reasons for rejecting the special master’s report withstand scrutiny.A. Standard of Review{10} Because this case involves proceedings before a special master and a district court’s subsequent review of the special master’s re-port, two standards of review are relevant in this case: the standard the district court applies to review of the special master’s report and the standard that our Court applies to review of the district court’s order. 1. District Court’s Review of Special

Master’s Report {11} Rule 1-053(E)(2) provides that in non-jury actions, “the [district] court shall accept the [special] master’s findings of fact unless clearly erroneous.” Our case law—with one exception—has equated the term “clearly er-roneous” with the familiar substantial evidence standard of review.{12} We begin with Lopez v. Singh, in which our Supreme Court interpreted the rule’s language as directing that “the findings of the [special] master, if supported by substantial evidence, are binding upon the trial court.” 53 N.M. 245, 247, 205 P.2d 492, 493 (1949). The Court went on to state that “findings will not be set aside merely because the record tends to show that they are not supported by the weight of the evidence.” Id. The Court observed that the New Mexico rule applicable to a special master’s findings was, at the time Lopez was decided, identical to its federal

counterpart and cited with approval federal case law defining the standard of review. Id. at 247-48, 205 P.2d at 493. “[S]o far as the finding of the [special] master . . . who saw the witnesses depends upon conflicting testimony or upon the credibility of witnesses, or so far as there is any testimony consistent with the finding, it must be treated as unassailable.” Id. at 247, 205 P.2d at 493 (internal quotation marks and citation omitted). Applying this standard to the case before it, the Court in Lopez concluded that the district court, which had modified some of the special master’s findings and rejected others, had improperly weighed the evidence. Id. at 248-49, 205 P.2d at 493-94. Because the special master’s findings were supported by substantial evidence, the Supreme Court reversed the district court’s order and remanded with instructions to reinstate the special master’s findings. Id. at 249, 205 P.2d at 494.{13} Our Supreme Court continued to apply the standard of review stated in Lopez in three subsequent cases. In Purdy v. Tucker, the Court affirmed the district court’s confirmation of the referee’s report, stating that “[i]f . . . the testimony before the referee was conflicting, or if it depended upon the credibility of the witnesses, and the referee found the facts from that testimony, his findings in this particular are not subject to attack, and are binding upon the trial court unless, after an examina-tion of the record, it can discover there was no substantial testimony to sustain them.”2 54 N.M. 86, 90, 214 P.2d 766, 768 (1950). In Witt v. Skelly Oil Co., the Supreme Court applied the Lopez standard and reversed the district court’s rejection of some of the special master’s findings of fact. Witt, 71 N.M. 411, 416, 418, 379 P.2d 61, 64-66 (1963). And in State ex rel. Reynolds v. Lewis, a water law case, the Supreme Court affirmed the district court’s adoption of the special master’s findings and conclusions “under the well-established rule” that findings supported by substantial evidence will not be disturbed. 74 N.M. 442, 443, 394 P.2d 593, 593 (1964). The Court further stated that “[t]he fact that there may have been contrary evidence which would have supported a different finding does not permit us to weigh the evidence.” Id.{14} Six years after it decided Lewis, the Su-preme Court in Martin v. Foster, 81 N.M. 583, 470 P.2d 304 (1970), applied a standard of re-view different from that applied in prior cases. The case involved a dispute over a construction contract, and the parties submitted the dispute to three special masters to resolve. Id. at 583, 470 P.2d at 304. The special masters submitted a report that the district court adopted, and the Supreme Court reversed. Id. at 584-85,

2Rule 1-053(A) defines the word “master” as including “a referee.”


470 P.2d at 305-06. In stating the standard of review to be applied by the district court, the Supreme Court did not cite any of the cases that we have discussed above. Instead, the Court noted that New Mexico’s Rule 53(e)(2) (cited as NMSA 1953, § 21-1-1(53)(e)(2) (Vol 4, Repl.), which in relevant part is identical to current Rule 1-053(E)(2)) was identical to its federal counterpart and cited a Tenth Circuit Court of Appeals case for the proposition that “findings are clearly erroneous if the reviewing court on the entire evidence has the definite and firm conviction that a mistake has been committed.” Martin, 81 N.M. at 584-85, 470 P.2d at 305-06 (citing United States v. Waymire, 202 F.2d 550, 553 (10th Cir. 1953) (internal quotation marks omitted)). The Court con-cluded that the special masters had decided the dispute on the basis of standards different from the standards required by the construction contract and, therefore, “the findings based on those standards were clearly erroneous.” Id. (internal quotation marks omittted).{15} The standard of review applied in Martin appears to permit rejection of a special master’s findings even if they are supported by substan-tial evidence. The standard stated in Martin is the same as the pre-2003 federal definition of “clearly erroneous.” In 2003, Fed. R. Civ. P. 53 was substantially revised to permit de novo review of a special master’s findings and con-clusion. Under the pre-2003 federal standard, “the reviewing court may [disregard] a finding even if supported by substantial evidence when the clear weight of the evidence suggests that the finding is incorrect.” 9 James Wm. Moore, et al., Moore’s Federal Practice, § 52.31[4], 52-65 (3d ed. 2012). It is this pre-2003 federal standard that the OSE asks us to apply in the present case.{16} In our view, the standard stated in Martin is an anomaly in New Mexico’s jurisprudence related to Rule 1-053. The standard permit-ting rejection of a special master’s findings upon “the definite and firm conviction that a mistake has been committed” does not appear in any other New Mexico case addressing Rule 1-053. Martin, 81 N.M. at 585, 470 P.2d at 305 (internal quotation marks and citation omitted). Furthermore, all of the relevant cases preceding and following Martin apply the substantial evidence standard of review to a special master’s findings of fact. For example, in State ex rel. Reynolds v. Niccum, 102 N.M. 330, 695 P.2d 480 (1985), another water law case, our Supreme Court ignored Martin and again relied on Lopez and Witt, stating, “Only when there is total lack of substantial evidence to support the special master’s findings, is the court warranted in rejecting the [special] master’s report.” Niccum, 102 N.M. at 332, 695 P.2d at 482. The Court went on to state that “[w]hen there is substantial evidence[,]

the special master’s findings are binding upon the trial court.” Id. And, following Niccum, this Court applied the substantial evidence standard in Lozano v. GTE Lenkurt, Inc., 1996-NMCA-074, ¶ 15, 122 N.M. 103, 920 P.2d 1057, stating that “an order or judgment by a district court adopting a special master’s report will be upheld on appeal if the special master’s findings are supported by substantial evidence.” We therefore conclude that the district court could reject the special master’s findings of fact only if they were not supported by substantial evidence.{17} Although Rule 1-053 does not specify the standard of review that should be applied to a special master’s conclusions of law, our case law has established that a special master’s conclusions of law are to be reviewed de novo by district courts. Lee v. Martinez, 2004-NMSC-027, ¶ 12, 136 N.M. 166, 96 P.3d 291; see Lozano, 1996-NMCA-074, ¶¶ 17-18. In examining the special master’s conclusions of law, a reviewing court exercises independent judgment without assigning special weight to the special master’s conclusions of law. Lee, 2004-NMSC-027, ¶ 12.2. Appellate Review of the District

Court’s Order{18} The standard of review that an appellate court employs in cases involving Rule 1-053 has not been clearly expressed in New Mexico appellate decisions. However, our case law leads us to conclude that our review is the same as the review conducted by the district court; that is, we consider whether the special master’s findings of fact are supported by sub-stantial evidence. This is the standard of review employed by our Supreme Court in Lopez, Witt, Lewis, and Niccum, and by this Court in Lozano. This standard is applied regardless of whether the district court had adopted or rejected the special master’s findings. See Nic-cum, 102 N.M. at 332-33, 695 P.2d at 482-83 (“Once findings of a special master are adopted and approved by the trial court, th[e appellate] court will not disturb those findings when they are supported by substantial evidence.”); Lewis, 74 N.M. at 442-43, 394 P.2d at 593 (explain-ing that “an appellate court must first review the sufficiency of the evidence to support [the findings] made by the [special] master” and af-firming district court’s adoption of the special master’s findings because they were supported by substantial evidence); Witt, 71 N.M. at 413, 417, 379 P.2d at 63, 65 (reversing the district court’s rejection of some of the special master’s findings because the Supreme Court’s review of the record established that the special master’s findings were supported by substantial evidence); Lopez, 53 N.M. at 247-48, 205 P.2d at 493-94 (reversing district court’s rejection of certain of the special master’s findings because the Supreme Court’s review of the

evidence failed to reveal that the findings were erroneous, i.e., not supported by substantial evidence); Lozano, 1996-NMCA-074, ¶ 15 (explaining that “an order or judgment by a district court adopting a special master’s report will be upheld on appeal if the special master’s findings are supported by substantial evidence”). Thus, we give no deference to the district court’s findings but instead consider only whether the special master’s findings of fact were supported by substantial evidence. Nonetheless, we examine the district court’s rationale for rejecting the special master’s report in this case in order to provide context for our analysis.B. Th e District Court’s Grounds for

Rejecting the Special Master’s Report{19} The district court rejected the special master’s report after concluding that the spe-cial master’s findings concerning beneficial use were “clearly erroneous and not supported by substantial evidence.” In its order, the district court relied on this Court’s decision in State ex. rel. Martinez v. McDermett, 120 N.M. 327, 901 P.2d 745 (Ct. App. 1995).{20} In New Mexico, “water rights are both established and exercised by beneficial use, which forms the basis, the measure and the limit of the right to use of the water.” Walker v. United States, 2007-NMSC-038, ¶¶ 21-22, 142 N.M. 45, 162 P.3d 882 (internal quota-tion marks and citation omitted); see NMSA 1978, § 72-1-2 (1907) (stating the beneficial use provision of the state water code). Ben-eficial use has been defined in our case law as “the use of such water as may be necessary for some useful and beneficial purpose in con-nection with the land from which it is taken.” McDermett, 120 N.M. at 330, 901 P.2d at 748 (internal quotation marks and citation omitted). “The concept requires actual use for some purpose that is socially accepted as beneficial.” Id. An evaluation for beneficial use generally requires an assessment of “the quantity, place of use, and purpose to which water has actually been applied.” Tri-State Gen-eration & Transmission Ass’n, Inc. v. D’Antonio, 2011-NMCA-015, ¶ 13, 149 N.M. 394, 249 P.3d 932, cert. granted, 2011-NMCERT-002, 150 N.M. 617, 264 P.3d 129.{21} In this case, the special master concluded that water was “put to beneficial use on all of the [b]ench [l]ands by the end of 1955.” As grounds for the beneficial use determination, the special master relied on evidence of crop growth on the disputed bench lands. Specifi-cally, the special master found credible Baca’s testimony that in 1981, he observed alfalfa crops growing on all of the bench lands during negotiations for the purchase of the property as well as testimony from other witnesses that they had observed crop growth on the bench lands prior to Baca’s purchase of the farm.


The special master also found persuasive the testimony of Baca’s expert, who opined that aerial photographs predating Baca’s purchase of the property showed evidence of cultivation, and that an aerial photograph from 1955, in particular, showed the most signs of cultivation on the bench lands. The special master also noted that the OSE’s experts acknowledged that aerial photographs from 1955 and 1974 showed signs of irrigation and that “crops were being grown on some benches.”{22} In addition to the foregoing, the special master’s report indicated that he relied on two additional items to support beneficial use of the water: (1) evidence that “the [b]ench [l]ands had been constructed for the express purpose of growing crops” and, (2) “an ir-rigation system [that] had been installed for delivery of water from the . . . [w]ell to all of the [b]enches.” The special master stated that he believed it to be “highly unlikely, if not inconceivable, that someone would go to the trouble of constructing the [b]ench [l]ands and installing an irrigation system for those lands without taking the next step of applying irrigation water to the benches.”{23} In rejecting the special master’s finding of beneficial use, the district court disagreed with the special master that the record sup-ported any finding that “irrigation water has ever been used to grow a crop on the disputed bench lands.” The district court also appears to have relied on McDermett to reject the special master’s reliance on the preparatory steps taken toward cultivation as being indicative of beneficial use. On appeal, the OSE maintains that the special master erred as a matter of law based on our holding in McDermett. As we explain below, although we agree with the OSE’s position that the special master’s reli-ance on the evidence of preparatory steps was improper under McDermett, we nevertheless conclude that the district court erred in dis-regarding the evidence supporting the special master’s findings concerning crop growth. See McDermett, 120 N.M. at 332, 901 P.2d at 750 (observing that “growing crops constitutes a beneficial use of water”).{24} Of relevance here, McDermett concerned the issue of whether a predecessor in interest to the defendant property owners had estab-lished proof of beneficial use of water over an eighty-four acre tract for which water rights were in dispute. Id. at 329-30, 901 P.2d at 747-48. At trial, the defendants presented documentary evidence that a predecessor in interest had drilled a well on the land in question, “put a pump in it, . . . dug two main ditches and approximately six miles of laterals on the property, . . . [and ran] water appar-ently . . . through all the ditches and laterals”

as far back as the year 1907. Id. at 330, 901 P.2d at 748. Additional documentary evidence was presented showing that crops were grown on approximately twenty acres during that year and that some forty years later, crops were grown on the remainder of the land. 120 N.M. at 329, 901 P.2d at 747. The district court determined that the diversion of water onto the entire water tract was sufficient to constitute beneficial use. Id. at 330-31, 901 P.2d at 748-49. This Court reversed, holding that “[a] diversion alone is not beneficial use” and that “[t]here must be an ultimate, actual beneficial use of the water resulting from the diversion.” Id. at 331, 901 P.2d at 749. We stated that “[f ]or a diversion of water for the purpose of irrigation to constitute beneficial use, the water must be used to irrigate crops within a reasonable time.” Id. Under the facts presented in that case, there was evidence of actual crop growth—and thus, beneficial use—solely on twenty acres in 1907 and, by contrast, no evidence that water was applied to beneficial use on the remaining sixty-four acres in that year. Id. Thus, we concluded that the district court erred in determining that water had been applied to beneficial use on the entire eighty-four acre tract. Id.{25} In the present case, we agree with the OSE that the special master’s reliance on the evidence of preparatory steps taken toward irri-gation and/or cultivation to establish beneficial use was improper under McDermett. Although the special master appeared to understand the holding of McDermett that a diversion alone is not beneficial use, the special master neverthe-less drew an impermissible inference that con-struction of the bench lands and installation of an irrigation system was evidence of beneficial use because the special master considered it to be “highly unlikely” that a property owner would take these actions without taking future steps indicative of beneficial use. We are con-vinced by the OSE’s argument that neither of these actions is enough under McDermett to establish beneficial use because neither of these reflects an “an ultimate, actual beneficial use of the water.” See id. (emphasis added) (stat-ing that a “diversion of water into irrigation ditches or flooding the land with the diverted water does not, by itself, constitute irrigation for the purpose of establishing beneficial use”).{26} However, unlike the factual scenario presented in McDermett, the special master’s report in this case included findings of actual crop growth on the disputed bench lands. These findings relied in part on Baca’s testimo-ny regarding growth of alfalfa crops on all of the bench lands and the testimony from both Baca’s and the OSE’s experts acknowledging that certain aerial photographs showed signs of

cultivation on the bench lands. Even if we set aside the special master’s findings regarding the steps taken preparatory to cultivation, these factual findings of crop growth were sufficient, by themselves, to establish beneficial use of water on the disputed bench lands. See id. at 332, 901 P.2d at 750 (observing that “growing crops constitutes a beneficial use of water”).{27} In rejecting the special master’s finding of beneficial use, the district court had to disregard all of this evidence, which is not permissible under the applicable standard of review. As stated in Witt, “[T]he master’s findings are presumed to be correct and . . . so far as they depend upon conflicting evidence, or upon the credibility of witnesses, or so far as there is any testimony consistent with the findings, they must be treated as unassailable.” 71 N.M. at 416, 379 P.2d at 65. The findings were therefore binding on the district court, and we conclude that the district court erred in setting aside the special master’s finding of beneficial use.{28} At oral argument, the OSE argued that as a matter of law, beneficial use cannot occur until crops have been grown and harvested. The OSE has cited no authority establishing that evidence of actual harvest is required, and McDermett states clearly that “growing crops constitutes a beneficial use of water.” 120 N.M. at 332, 901 P.2d at 750. We are not persuaded that Baca had to prove that crops were harvested in order to establish that the water right had been put to beneficial use by the time he purchased the property in ques-tion.{29} The OSE raises two arguments on appeal challenging the special master’s reliance on a declaration of beneficial use filed by Baca’s real-tor in April as support for the special master’s finding that Baca’s predecessors in interest applied the water right to beneficial use on the disputed bench lands. We decline to address these arguments because even without the evidence of the declaration, other substantial evidence supports the special master’s finding of beneficial use.CONCLUSION{30} Based on the foregoing, we reverse the district court’s order and remand with instruc-tions that the district court consider the OSE’s remaining objection to the special master’s report on the issue of abandonment of the water right.{31} IT IS SO ORDERED. CYNTHIA A. FRY, JudgeWE CONCUR:MICHAEL D. BUSTAMANTE, JudgeJONATHAN B. SUTIN, Judge


opinion

Michael d. BustaMante, Judge

{1} In early 2005, Bruce Clinesmith was suffering from Alzheimer’s disease. The district court appointed a guardian and conservator to protect his person and assets. After the conservator was appointed, Ruth Clinesmith (Wife) and her attorney met with Mr. Clinesmith at the locked assisted care facility where he had been admitted. The conservator unsuccessfully tried to stop the meeting. During the meeting, Mr. Clinesmith executed a new estate plan giv-ing Wife control of his estate. In response to a motion by the conservator to prevent interference with its duties, the district court voided the estate plan. This case presents two issues. Did the district court have jurisdic-tion over the new estate plan? This appeal was filed over five years after the district court voided the estate plan. Is the appeal timely? Answering the former question in the affirmative and the latter in the negative, we dismiss.I. Background {2} In March 2005, Mr. Clinesmith’s daughter, Cathe Temmerman, filed a verified petition for the appointment of a guardian and conservator, asserting that Mr. Clinesmith suffered from dementia such that he was incapable of managing both his declining health and his estate of over $11 million. At the time the petition was filed, Mr. Clinesmith was eighty-seven years old and living with his Wife in a pri-vate residence, but after a hospital stay he was moved into the dementia/Alzheimer’s unit at an elder care facility in late May 2005. Mr. Clinesmith and Wife, initially both represented by attorney Stuart Stein, opposed the petition. {3} Starting in 1992, Mr. Clinesmith had arranged for the bulk of his estate to go to Moody Bible Institute of Chicago (Moody). The estate was spread among three revocable trusts; two administered by Moody and the third by a commercial trust—Salomon Smith Barney. The trust provisions allowed Mr. Clinesmith to draw on the trust assets for his expenses. In separate but parallel pro-ceedings commenced in federal court while this guardianship/conservatorship action in state court was pending, Wife attempted to gain control of the trust assets. In addition, Wife sought to have the monies held in trust for Moody transferred to her pursuant to a power of attorney signed by Mr. Clinesmith in early 2004. {4} In compliance with NMSA 1978, Section 45-5-407 (1998) of the Uniform Probate Code (UPC), the district court

Certiorari Denied, January 9, 2013, No. 33,935



Topic Index:Appeal and Error: Standard of Review

Civil Procedure: Dismissal; and Final OrderDomestic Relations: Guardians and Conservators

Jurisdiction: Ancillary; District Court; and Subject MatterStatutes: Interpretation

Wills, Trusts, and Probate: Administration of Estate; Competence; Personal Representative; Revocation; Testamentary Intent; and Trusts, General

IN THE MATTER OF BRUCE C. CLINESMITH, an Adult Incapacitated Person (now deceased),

RUTH CLINESMITH, Interested Party-Appellant,

versusCATHE TEMMERMAN,Petitioner-Appellee,

andDECADES, L.L.C.,

Conservator-Appellee Intervenor,and

MOODY BIBLE INSTITUTE OF CHICAGO, Intervenor-Appellee.

No. 31,230 (filed November 2, 2012)

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTYLINDA M. VANZI, District Judge

PETER B. SHOENFELDPETER B. SHOENFELD, P.A.

Santa Fe, New MexicoPETER F. WIRTH

SAWTELL, WIRTH & BEIDSCHEID, P.C.

Santa Fe, New Mexicofor Appellant

GREGORY W. MACKENZIEHURLEY, TOEVS, STYLES, HAMBLIN

& PANTER, P.A.Albuquerque, New Mexico

for Appellee Cathe Temmerman

RUTH O. PREGENZERPREGENZER, BAYSINGER,

WIDEMAN & SALE, P.C.Albuquerque, New Mexicofor Conservator-Appellee

Decades, L.L.C.

W. SPENCER REIDTHOMAS C. BIRD

GARY J. VAN LUCHENEKELEHER & MCLEOD, P.A.

Albuquerque, New Mexicofor Intervenor-Appellee

Moody Bible Institute of Chicago


appointed a guardian ad litem on March 4, 2005, to represent Mr. Clinesmith. See NMSA 1978, §§ 45-1-101 to -7-612 (1975, as amended through 2012). On August 5, 2005, the district court appointed Decades, LLC, an elder care management organiza-tion, as a temporary guardian and conserva-tor with “full” powers to manage Mr. Cline-smith’s assets. The same order disqualified Mr. Stein from representing Mr. Clinesmith on the ground that his interests and Wife’s interests were adverse and, therefore, Mr. Stein could not represent both. The order also revoked the 2004 power of attorney granted to Wife by Mr. Clinesmith. {5} Disregarding the order and its effects, Mr. Stein and Wife met with Mr. Cline-smith at the elder care facility on August 18, 2005, without notifying the district court, Decades, or the guardian ad litem of the meeting. Staff at the elder care facility notified Decades that Mr. Stein and Wife, along with several of Mr. Stein’s staff, were meeting with Mr. Clinesmith in a private room. A social worker and an attorney representing Decades arrived at the facility shortly thereafter. The Decades staff at-tempted unsuccessfully to stop the meeting altogether and were unable to discuss the documents with Mr. Clinesmith. {6} At the meeting, Mr. Clinesmith signed a new will naming Wife as personal repre-sentative and a new trust document naming Wife as trustee. We refer to these documents as the “new estate plan.” The effect of these modifications was to revoke the previous trusts and “create a new trust with [Wife] as trustee with all the power ‘that an absolute owner of such property would have.’ ” In re Stein, 2008-NMSC-013, ¶ 12, 143 N.M. 462, 177 P.3d 513 (per curiam). “These documents had the additional effect of removing all of the assets belonging to [Mr. Clinesmith] from the jurisdiction of the court in the guardianship and conservator-ship proceeding.” Id. {7} Decades and Ms. Temmerman (Ap-pellees) filed a motion and sought an emergency hearing to prevent Mr. Stein from “interfer[ing] . . . with Decades’ per-formance of its duties and the exercise of its powers as temporary guardian and conserva-tor of [Mr.] Clinesmith.” The specific relief requested was an order

preventing [Mr.] Stein from hav-ing any contact with Mr. Cline-smith, ordering [Mr.] Stein to produce all documents that were presented or involved in the meet-ing at [Mr. Clinesmith’s residence in the Alzheimer’s ward at an elder care facility] on August 18, 2005,

ordering [Mr.] Stein to produce all documents or records pertaining to his representation of Mr. Cline-smith, and for all such other and further relief as the Court deems just and proper.

At the emergency hearing on the motion, Decades requested orally that the new estate plan be voided. Mr. Stein objected that this request was not made in writing in the mo-tion and, therefore, he did not have notice of such request. The district court orally granted the motion and Decades’ request to void or hold “frozen” the new estate plan. The district court voided the new estate plan “for a variety of reasons, not the least of which is that [the court thought] that they were improperly—the signatures were improperly gained.” The district court denied Mr. Stein’s oral request for an inter-locutory appeal of this order. The district court’s order was filed on August 29, 2005. Wife did not file a motion for rehearing or reconsideration of this order. After another hearing, the district court disqualified Mr. Stein from representing Wife “and [a]ll [o]ther [p]ersons with [i]nterests [a]dverse to [Mr.] Clinesmith.” Finally, on October 7, 2005, the district court appointed Decades as permanent guardian and conservator for Mr. Clinesmith. {8} Wife timely filed a notice of appeal from this order on November 4, 2005. The notice stated that she appealed “from the final [o]rder entered . . . on October 7, 2005, . . . and from all orders and rulings that preceded, led to, and produced said [o]rder.” Wife then voluntarily dismissed the appeal in February 2006. Mr. Clinesmith died on May 9, 2010, and the district court accepted the recommendations of a special master and approved Decades’ final report on March 4, 2011. The present appeal was timely filed on April 4, 2011, over five years after entry of the October 7, 2005, order. {9} As a result of his conduct in this mat-ter, Mr. Stein was disbarred for five years. Id. ¶¶ 19, 73. The Supreme Court held that Mr. Stein’s conduct violated the New Mexico Rules of Professional Conduct, including, inter alia, Rule 16-402 NMRA (communication with persons represented by counsel); Rule 16-804(C) NMRA (misconduct); Rule 16-109(A) NMRA (representing a person in the same or substantially related matter in which that person’s interests were materially adverse to those of a former client). In re Stein, 2008-NMSC-013, ¶¶ 27, 32, 39. Recognizing that Mr. Stein had described Mr. Clinesmith in pleadings as suffering from early stages of dementia and otherwise expressed doubt as

to Mr. Clinesmith’s competency, the Court wrote, “[w]hat is so reprehensible to this Court is that [Mr. Stein], acknowledging that [Mr. Clinesmith’s] mental capacity was in question, attempted to take money from him and transfer it to [Wife,] while purporting to represent both of them.” Id. ¶ 25.II. Discussion{10} Appellees argue that Wife failed to timely appeal and, therefore, the appeal should be dismissed. The parties appear to agree that the August 29, 2005, order invalidating the new estate plan was not a final order. While we are not convinced that this is the case, we accept this premise consistent with our interest in facilitating the right to appeal and because we do not pursue arguments the parties do not make. See Govich v. N. Am. Sys., Inc., 112 N.M. 226, 230, 814 P.2d 94, 98 (1991); Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (“We will not review unclear arguments, or guess at what [a party’s] arguments might be.”). Appellees argue that the October 7 order was final because it resolved all of the issues in Ms. Temmerman’s initial petition and incorporated all previous orders such that appeal of the August 29 order should have been filed within thirty days of the October 7 order. {11} Wife maintains that the October 7 order did not make the order voiding the new estate plan final and appealable. As we understand her argument, Wife argues that (1) the district court did not have jurisdic-tion to void the new estate plan because such relief was not requested in Decades’ motion, or the issue could not be considered until after Mr. Clinesmith’s death; and (2) because the court had no jurisdiction over the matter, any order on the new estate plan was not final and appealable. Wife argues that the August 29 order became final only after Mr. Clinesmith died and the district court adopted the special master’s recom-mendations as to his estate on March 4, 2011. Thus, Wife argues, the appeal filed on April 4, 2011, was timely under Rule 12-201 NMRA.{12} We hold that the district court had the power to address the new estate plan because the district court was exercising its general civil jurisdiction and its order was within the scope of the motion. We also hold that the district court was not precluded from addressing the signing of the new estate plan prior to Mr. Clinesmith’s death. We conclude further that the October 7 order incorporated the August 29 order and that both orders became final and appealable on


October 7, 2005. As a result, this appeal—filed over five years later—is untimely. A. Standard of Review{13} The questions before us require that we construe the UPC and the appellate rules. Statutory interpretation is a question of law which an appellate court undertakes de novo. Grygorwicz v. Trujillo, 2009-NMSC-009, ¶ 7, 145 N.M. 650, 203 P.3d 865 (“Determining whether [an] appeal was timely involves the interpretation of court rules, which we review de novo.”); Ottino v. Ottino, 2001-NMCA-012, ¶ 6, 130 N.M. 168, 21 P.3d 37 (“Whether the district court is possessed of jurisdiction over the subject matter of a case is a question of law that we review de novo.”).B. The District Court Had Jurisdiction

Over The New Estate Plan{14} Wife maintains that the new estate plan did not fall within the scope of the petition that prompted the August 29 or October 7 orders and, therefore, the district court could not rule on that issue. She argues additionally that, even if the new estate plan fell within the scope of the petition, the new estate plan could not be considered until after Mr. Clinesmith’s death. We are not persuaded. 1. The New Estate Plan Was Raised in

the Motion{15} The August 29 order voided the new estate plan in response to Decades’ motion to prevent interference with its duties as temporary guardian and conservator of Mr. Clinesmith’s estate. That motion described Mr. Stein’s meeting with Mr. Clinesmith to sign the new estate plan as “interfer[ing] with Decades’ performance of its duties and exercise of its powers as Mr. Clinesmith’s guardian and conservator . . . over Decades’ clear and unequivocal objection.” Decades’ duties are related to the overall purpose of a conservatorship: “[T]o protect the person and property of persons whose functional and decision-making capacity has become impaired.” 57 C.J.S. Mental Health § 151 (2007). A conservator is “a person who is appointed by a court to manage the property or financial affairs or both of a protected person[.]” Section 45-5-101(A). “In the exercise of a conservator’s powers, a conservator shall act as a fiduciary . . . .” Section 45-5-417. Thus, a conservator has the authority and obligation to manage the financial affairs of the protected person in that person’s stead. {16} The facts admitted by Mr. Stein at the hearing are sufficient to show that Mr. Stein (1) arranged to meet with Mr. Clinesmith about the new estate plan without notifying Decades, the district court, or the guardian

ad litem of the meeting; (2) met with Mr. Clinesmith over the objections of Decades’ staff who arrived after the meeting had begun; and (3) refused to discontinue the meeting or allow Decades’ staff to read the documents or take over the meeting. Since Decades was appointed by the court to “manage the property or financial affairs” of Mr. Clinesmith, any action by Mr. Stein to alter the disposition of Mr. Clinesmith’s estate without Decades’ knowledge and ap-proval, even if it were at the request of Mr. Clinesmith himself, was an interference with Decades’ duties.{17} To the extent Wife argues that she was denied due process of law because she had no notice of Appellees’ intent to request that the new estate plan be voided and no opportunity to present evidence, we disagree. Decades’ motion requested relief from Mr. Stein’s interference with its duties, and Wife acknowledged Decades’ motion in her response. In that response, Wife averred that “[t]he meeting with the Clinesmiths, the witnesses and the two doctors [who accompanied Mr. Stein] was going fine and without incident until [a Decades staff member] came in the room.” Wife acknowl-edged that Decades’ staff tried to end the meeting and prevent Mr. Clinesmith from signing the new documents. Although Wife claimed that “[t]he [m]otion is . . . silent as to what was the interference with the exercise of the powers of the [t]emporary [g]uardian and [t]emporary [c]onservator[,]” the facts, recited by Wife in her response, reflect that Decades sought to prevent the meeting and the signing of documents, and that this objective was thwarted by Wife and Mr. Stein. Wife’s response itself is evidence that the motion was sufficient to provide notice of Decades’ intent. {18} Wife’s argument that she was denied the opportunity to present evidence on this issue also misses the mark. Wife does not direct this Court to the evidence she would have presented in the district court. Nevertheless, the parties appear to agree on the essential facts: that Mr. Stein arranged a meeting with Mr. Clinesmith without notifying Decades, the district court, or the guardian ad litem and that Decades staff attempted unsuccessfully to prevent the meeting and the signing of a new estate plan. These facts alone establish Mr. Stein’s interference with Decades’ duties as guard-ian and conservator, which was the basis of the August 29 order. As the district court explained:

Mr. Stein, my ruling is based on the fact that I issued an order in this case, and that you, with full

knowledge of Mr. Clinesmith’s incapacity, nevertheless, went and saw him on two occasions and secured a signature from him. The trust is a very big issue because that is the basis of the [f ]ederal [c]ourt lawsuit and that is the very thing that is being changed, and so on that basis, I don’t really need to hear testimony from other people. You’ve admitted the things that I needed to hear today from you.

Additional evidence as to Mr. Clinesmith’s testamentary capacity, the specifics of who said what in the meeting, or Mr. Clinesmith’s intent would not alter these undisputed facts. 2. The District Court Had General

Civil Jurisdiction{19} The district court had general civil ju-risdiction over the conservatorship proceed-ings and the August 29 order was entered pursuant to that authority. The New Mexico Constitution limits jurisdiction over “special cases and proceedings” to that “conferred by law.” N.M. Const. art. VI, § 13. Probate proceedings are special proceedings. In re Estate of Harrington, 2000-NMCA-058, ¶ 14, 129 N.M. 266, 5 P.3d 1070. In In re Estate of Harrington, however, this Court held that the UPC gives “district courts general civil jurisdiction in formal probate proceedings.” Id. ¶¶ 17, 22; see §§ 45-1-302, -302.1. In that case, the question was whether the district court sitting in probate had the authority to liquidate a business that was the subject of a will contest. In re Estate of Harrington, 2000-NMCA-058, ¶ 1. This Court concluded that it did based on construction of the language of Section 45-1-302(B), which gives the district court power to, among other things, “make orders, judgments and decrees and to take all other action necessary and proper to administer justice in matters that come before it.” Id.; In re Estate of Harrington, 2000-NMCA-058, ¶ 16. This Court also found that the UPC’s intent to “promote a speedy and efficient system for the settlement of the estate of the decedent” is facilitated by vesting general civil jurisdiction in the district court in for-mal probate proceedings. Id. ¶ 19 (internal quotation marks and citation omitted); cf. Ottino, 2001-NMCA-012, ¶ 14 (stating that “the district court’s original jurisdic-tion arises from our state’s constitution” and explaining that “[i]n this light, the statutory jurisdiction vested in our district courts for the purposes of . . . entering orders . . . upon divorce ought not to be viewed as a limitation upon the courts’ original jurisdiction, but as an augment to it”).


{20} In re Estate of Harrington applies to formal probate proceedings, which are dif-ferent from conservatorship proceedings. See § 45-3-401(A) (“A formal testacy pro-ceeding is litigation to determine whether a decedent left a valid will.”). Nevertheless, the factors that led the In re Estate of Har-rington Court to its conclusion are also present in conservatorship proceedings and, therefore, we determine that district courts have general civil jurisdiction over them. We note first that “[t]he [UPC] governs conservatorship proceedings.” In re Conser-vatorship of Chisholm, 1999-NMCA-025, ¶ 8, 126 N.M. 584, 973 P.2d 261. Thus, the general definitions and requirements of the UPC apply to conservatorship proceed-ings to the extent they do not conflict with specific provisions within Article 5 of the UPC, which governs protection of minors and incapacitated persons. See, e.g., §§ 45-1-102, -201, -5-101. Secondly, the issues to be resolved in formal probate proceedings are similar in gravity to those addressed by con-servatorship proceedings. The New Mexico Constitution reserves to district courts sit-ting in probate, rather than probate courts, those issues related to title or possession of real property, which are often the most sig-nificant, contested, and complex aspects of the decedent’s estate. N.M. Const. art. VI, § 23; see In re Estate of Duncan, 2002-NMCA-069, ¶ 15, 132 N.M. 426, 50 P.3d 175, rev’d on other grounds by In re Estate of Duncan v. Kinsolving, 2003-NMSC-013, ¶ 8, 133 N.M. 821, 70 P.3d 1260. This division of labor indicates the desire to give these issues the greater protections of a district court. {21} In many ways, the appointment of a conservator is more significant than a formal probate because the appointment deprives the protected person of the autonomy to manage his or her own estate and financial affairs. The importance of this determina-tion is reflected in the statutory conditions for conservatorships, which require, inter alia, (1) notice to those who may have an interest in the protected person or the estate, Section 45-5-405; (2) careful consideration of the least restrictive means of managing the affairs of the protected person, Section 45-5-402.1(A); (3) appointment of a guard-ian ad litem, visitor, and health care profes-sional to advise the court on the capacity of the person to be protected, Section 45-5-407(B), (C), (D); a jury trial, if requested, Section 45-5-407(P); and (4) processes for the protected person to terminate the conservatorship, Section 45-5-430.{22} In addition, like district courts sit-ting in formal probate proceedings, district courts in conservatorship proceedings

exercise broad powers. Section 45-1-302, a general provision applicable to conservator-ship proceedings, provides that:

A. The district court has exclu-sive original jurisdiction over all subject matter relating to: . . . . (2) estates of missing and protected persons; (3) protection of incapaci-tated persons and minors; . . . . (7) governing instruments except wills.

B. . . . The district court has full power to make orders, judg-ments and decrees and to take all other action necessary and proper to administer justice in matters that come before it.

(Emphasis added.) In addition, Section 45-5-405.1 states that once a basis for appoint-ment of a conservator has been established,

A. . . . the court, without ap-pointing a conservator, may autho-rize, direct or ratify any transaction necessary or desirable to achieve any security, service or care ar-rangement meeting the foreseeable needs of the person.

. . . . B. . . . the court, without ap-

pointing a conservator, may autho-rize, direct or ratify any contract, trust or other single transaction relating to the protected person’s estate and financial affairs if the court finds that the transaction is in the best interests of the pro-tected person.

Furthermore, Section 45-5-402 provides that

After the service of notice in a proceeding seeking the appoint-ment of a conservator or other protective order and until termina-tion of the proceeding, the court in which the petition is filed has:

A. exclusive jurisdiction to de-termine the need for a conservator or other protective order;

B. exclusive jurisdiction to determine how the estate of the protected person which is subject to the laws of New Mexico shall be managed, expended or distributed to or for the use of the protected person or any of his dependents[.]

{23} As in In re Estate of Harrington, we look also to whether the purposes of Article 5 of the UPC “would be frustrated if we gave [it] a narrower interpretation.” In re

Estate of Harrington, 2000-NMCA-058, ¶ 20. As discussed above, the goal of a conservatorship “is to protect the person and property of persons whose functional and decision-making capacity has become impaired.” 57 C.J.S. Mental Health § 151. The facts before us here provide a prime example of why limiting the district court’s authority would frustrate that purpose. A temporary conservator was appointed to manage Mr. Clinesmith’s estate and financial affairs. Obviously, conduct interfering with those duties is contrary to the goal of the appointment. To hold that the district court was powerless to rectify the interference would frustrate the overarching purpose of the proceedings: the protection of Mr. Clinesmith and his financial affairs.{24} Finally, conservatorship proceedings require a level of judicial oversight and no-tice that is similar to or more stringent than that in formal probate proceedings. “The distinctions between informal and formal proceedings include the degree of notice and judicial oversight required.” In re Estate of Duncan, 2002-NMCA-069, ¶ 15. Formal proceedings are those “conducted before a district judge with notice to interested per-sons[,]” Section 45-1-201(A)(19), whereas informal proceedings are “conducted with-out notice to interested persons.” Section 45-1-201(A)(25). The UPC includes exten-sive notice requirements for conservatorship proceedings, not only for the initial petition for conservator, but also for other motions and petitions in the course of the proceed-ings. See, e.g., §§ 45-5-402.1(B)(3), (C), -405, -406(A) (requiring notice to “[a]ny interested person who desires to be notified before any order is made in a . . . protective proceeding” who requests notice); §§45-5-416(C), -430. {25} The UPC requires substantial judicial oversight throughout the conservatorship proceedings and continuing until the protected person’s death and termination of the conservatorship. See, e.g., §§ 45-5-402, -402.1(B)(3) (giving the court “all the powers over the estate and financial affairs which the [protected] person could exercise if present and not under disability, except the power to make a will”); §§ 45-5-405.1, -407, -416(C) (stating that “[u]pon notice and hearing, the court may give appropri-ate instructions or make any appropriate order” on motions subsequent to appoint-ment of a conservator). Thus, the UPC sets out specific procedures for appointment of a conservator for the protection of the rights of the incapacitated person. See § 45-5-402.1(A) (stating that the court’s authority must be exercised to promote the


“maximum self-reliance and independence of a protected person and [the court may] make protective orders only to the extent necessitated by the protected person’s mental and adaptive limitations”). Failure to follow these rules renders the proceedings invalid. See Bonds v. Joplin’s Heirs, 64 N.M. 342, 345, 328 P.2d 597, 599 (1958). In fact, under these rules, conservatorship proceedings are formal by default: unlike the proceedings available for probate of a will, there is no procedure whereby a conservator may be appointed without judicial oversight. {26} In sum, the new estate plan was prop-erly before the district court because it was addressed by Decades’ motion and because the district court had and was exercising its general civil jurisdiction when it dealt with the motion. The finality of the August 29 and October 7 orders is not affected by any lack of jurisdiction. 3. The District Court Had The Power

to Void The New Estate Plan Prior to Mr. Clinesmith’s Death

{27} Wife argues that, notwithstanding the appointment of Decades as temporary conservator and temporary guardian, Mr. Clinesmith was entitled to make changes to his estate plan without the district court’s prior approval, provided that he did so dur-ing a period of lucidity, and that, absent a probate action, the district court could not void the new estate plan. Wife further argues that the district court’s reliance on the documents filed by Mr. Stein which set forth Mr. Stein’s understanding that Mr. Clinesmith was suffering from “some sort of memory loss or dementia” did not provide a basis for the district court’s order voiding the new estate plan because issues related to Mr. Clinesmith’s testamentary capacity “should only be evaluated in the pending probate case.” This argument is unavailing for two reasons.{28} First, this argument about the status of the will does not address the alteration of the trust documents, the effect of which was to give Wife power over Mr. Cline-smith’s property and remove his assets from the jurisdiction of the district court in the conservatorship proceedings. In re Stein, 2008-NMSC-013, ¶ 12. This act was in violation of the district court’s authority over the property as well as the conservator’s duties. See § 45-5-402(B) (“After the service of notice in a proceeding seeking the appoint-ment of a conservator . . . until termination of the proceeding, the court . . . has . . . exclusive jurisdiction to determine how the estate of the protected person . . . shall be managed[.]” The order voiding the new estate plan was an exercise of the district court’s general civil

jurisdiction over conduct that contravened that authority. {29} Second, this argument presumes that the district court’s order voiding the new estate plan was based on an assessment of Mr. Clinesmith’s testamentary capacity. Wife relies on Lucero v. Lucero in support of her argument. 118 N.M. 636, 884 P.2d 527 (Ct. App. 1994), superseded on other grounds by statute as stated in Chapman v. Varela, 2009-NMSC-041, 146 N.M. 680, 213 P.3d 1109. She argues that the new estate plan could not even be considered until after Mr. Clinesmith’s death because “nothing in the UPC prohibit[s] [the protected person] from executing [a] will merely because [an-other] was appointed to be the conservator of her property.” Id. at 639, 884 P.2d at 530.{30} Lucero is inapposite because it per-tained to probate of a will and Mrs. Lucero’s testamentary capacity whereas here the proceedings were to appoint a conservator and guardian. Id. at 638, 884 P.2d at 529. The district court voided the new estate plan not because Mr. Clinesmith lacked capacity, but because “the signatures were improperly gained.” The order did not prohibit Mr. Clinesmith from amending his estate plan under properly protective arrangements. Indeed, the UPC explicitly permits a conservator to “faciliat[e] execu-tion of a new will or estate plan where the protected person has sufficient mental ca-pacity[.]” Id. at 640, 884 P.2d at 531. Had he wished to, Mr. Clinesmith could have requested Decades’ assistance with hiring an attorney to prepare a new will and trust documents just as Mrs. Lucero did. Thus, unlike in Lucero, neither the hearing nor the order were directed at Mr. Clinesmith’s testamentary capacity. Rather, the focus of the hearing was on Mr. Stein’s behavior in light of the district court’s order prohibiting him from representing Mr. Clinesmith and the appointment of a guardian ad litem and conservator for Mr. Clinesmith. Although the district court questioned Mr. Stein about his understanding of Mr. Clinesemith’s capacity and referred to Mr. Clinesmith’s capacity in the hearing, the order voiding the new estate plan was not directed at whether Mr. Clinesmith intended to amend his estate plan; rather its effect was to return Mr. Clinesmith to the status quo ante the interference. As discussed, the district court had general civil jurisdiction over these proceedings. Nothing in Lucero limits that authority in this case. {31} Wife contends that Lucero stands for the proposition that “[t]he testamentary capacity of Bruce Clinesmith on August 18, 2005 . . . should only be evaluated in the

pending probate case.” Lucero does not so hold. Although the Lucero court determined that “[t]he mental capacity of the disabled person was thus intentionally left open [by the UPC] for future litigation, often post-mortem[,]” 118 N.M. at 638, 884 P.2d at 529, it does not follow that the UPC requires that litigation of the testamentary capacity of the protected person take place only after death. Wife finds a prohibition where there is only an observation—that such analysis often takes place after death. That the UPC does not foreclose creation of a new will while under conservatorship does not have any impact on whether or when litigation over that instrument will take place. {32} Though Wife maintains that Lucero is “on all fours” with the present case, it is dis-tinguishable. In Lucero, one of the testator’s sons had been appointed conservator and, at her request, he arranged for an attorney to meet with her to make a new will. The testator then died. Id. In a formal probate proceeding at which another son sought to introduce the first will, the district court ruled that appointment of a conservator created “a rebuttable presumption that Mrs. Lucero lacked testamentary capacity[,]” but found that “at the time of execution of the [later] will, Mrs. Lucero . . . was capable of understanding, in a reasonable manner, the nature and effect of the act of executing her Last Will and Testament.” Id. (internal quotation marks omitted). The later will was admitted to probate. Id. This Court affirmed. Id.{33} The procedures employed by the con-servator in Lucero and the process by which the new will was made distinguish Lucero from this case. There, the conservator ar-ranged for an attorney to meet privately (except for the witness) with Mrs. Lucero at her home. Id. at 639, 884 P.2d at 530. No one with an interest in Mrs. Lucero’s estate was present, including the conser-vator, to whom she left a greater portion of her estate than to her other devisees. Id. at 639-40, 884 P.2d at 530-31. Here, the conservator was unaware of the meet-ing regarding the new estate plan until it was underway and was prevented from reviewing the documents or discussing them with Mr. Clinesmith. The meeting was attended by (1) Wife, who had a sub-stantial interest in the new estate plan and whose interests had been declared adverse to Mr. Clinesmith’s; and (2) Mr. Stein, who represented Wife and was prohibited from representing Mr. Clinesmith in any way. Because Mr. Stein was prohibited from representing Mr. Clinesmith due to the conflict of interest with Wife, no


one in the meeting was representing Mr. Clinesmith’s interests until the staff from Decades arrived, and they were unsuccess-ful in stopping the meeting or the signing of documents. {34} At the hearing, Mr. Stein argued that Decades’ motion pertained only to future conduct and, therefore, did not address his conduct on August 18. Although Wife does not make this argument explicitly on appeal, she makes a similar one: that Decades did not ask specifically for the new estate plan to be voided and, therefore, the court was without power to do so. This argument is without merit not only because, as discussed above, the new estate plan was incorpo-rated into the motion, but also because it assumes the district court is powerless to rectify the instances of interference that prompted the motion in the first place. The motion included a description of the conduct complained of and stated that the meeting resulted in “an [a]mended and [r]estated [t]rust and a new [w]ill.” Thus, it obviously encompassed Mr. Stein’s past interference with Decades’ ability to manage Mr. Clinesmith’s estate. To hold that only future interference was addressed by the motion would be absurd because such an interpretation would permit the results of the interference to stand uncorrected even after they were brought to the attention of the district court. This interpretation is counter to the fundamental goals of the UPC and conservatorships. C. The October 7 Order Was a Final

Order{35} Having determined that the district court had subject matter jurisdiction over the new estate plan and, therefore, there was no jurisdictional bar to the district court’s ruling on the new estate plan, we turn to whether the October 7 order was final and appealable. Only final orders are appealable. NMSA 1978, § 39-3-2 (1966); Kelly Inn No. 102, Inc. v. Kapnison, 113 N.M. 231, 234 n.7, 824 P.2d 1033, 1036 n.7 (1992). “The general rule in New Mexico for determining the finality of a judgment is that an order or judgment is not considered final unless all issues of law and fact have been determined and the case disposed of by the trial court to the fullest extent possible.” Kelly Inn, 113 N.M. at 236, 824 P.2d at 1038 (internal quotation marks and citation omitted). This general rule is not inflexible. Id. It “is to be given a practical, rather than a technical, construction.” Id. {36} In this case, a detailed analysis of the practical effect of court orders is unneces-sary because Section 45-3-107 of the UPC addresses this question. In the context of

probate proceedings, “each proceeding before the district court or probate court is independent of any other proceeding involving the same estate.” Id.; see In re Estate of Newalla, 114 N.M. 290, 294, 837 P.2d 1373, 1377 (Ct. App. 1992) (“To hold that orders terminating separate proceedings are final orders is to give finality a practi-cal, rather than a technical, construction.” (internal quotation marks and citation omit-ted)). An order is final if it is dispositive as to the issues raised in the petition prompting the order. In re Estate of Newalla, at 294, 837 P.2d at 1377; see § 45-1-201(A)(38) (defining “petition” as “a written motion or other request to the district court for an order after notice”). Multiple petitions may be addressed in a single proceeding and order, and “no petition is defective because it fails to embrace all matters which might then be the subject of a final order.” Section 45-3-107. This rule of the UPC works in conjunction with Rule 1-054 NMRA. See § 45-1-308 (“Appellate review, including the right to appellate review [and] interlocu-tory appeal, . . . is governed by the rules applicable to civil appeals to the [C]ourt of [A]ppeals from the district court.”); Rule 1-054; In re Estate of Newalla, 114 N.M. at 294-95, 837 P.2d at 1377-78 (stating that when there is more than one claim in a petition, “an order is ordinarily final and appealable only when both matters have been decided, subject, of course, to [Rule 1-054(B)(1)], [which] permits a court to enter a final judgment as to fewer than all of the claims presented in an action if there is no just reason for delay”). Under this rubric, the question of whether an order is final is a factual inquiry into whether the district court has fully decided the issues in the petition that prompted it. {37} A final order may be appealed pursu-ant to the Rules of Appellate Procedure. See § 45-1-308 (stating that appeals from proceedings conducted under the UPC are “governed by the rules applicable to civil appeals to the [C]ourt of [A]ppeals from the district court”). The Rules of Appellate Procedure provide that an appeal of right from the district court “shall be filed . . . within thirty (30) days after the judgment or order appealed from is filed in the district court clerk’s office.” Rule 12-201(A)(2). This rule states a “mandatory precondition[ ] to the exercise of jurisdiction,” not an “absolute jurisdictional requirement.” Trujillo v. Ser-rano, 117 N.M. 273, 277-78, 871 P.2d 369, 373-74 (1994) (emphasis omitted). Under Trujillo, this Court may review an appeal even when not timely filed, but “[o]nly [in] the most unusual circumstances beyond the

control of the parties.” Id. at 278, 871 P.2d at 374. “Procedural formalities should not outweigh basic rights where the facts present a marginal case which does not lend itself to a bright-line interpretation.” Id. at 276, 871 P.2d at 372. The flexibility of this rule not-withstanding, “[c]ounsel should not rely on the court’s munificence when filing notices of appeal. It is incumbent upon the parties to strictly adhere to our clearly articulated rules of procedure.” Id. at 278, 871 P.2d at 374. {38} Ms. Temmerman’s petition was for the appointment of a guardian and conservator. After appointment as temporary conservator and guardian on August 5, 2005, Decades sought an order to prevent Mr. Stein from interfering with its duties in that role. That motion was granted. On September 28, 2005, the district court heard argument on the petition and reviewed reports submit-ted by the guardian ad litem and court visitor. The court also heard argument on other pending motions. Wife withdrew several of her motions in opposition to the petition and other motions were rendered moot as a result. Thus, all pending matters related to the petition were resolved at that hearing and memorialized in the October 7, 2005, order that appointed Decades the permanent guardian and conservator. In the context of the UPC, the October 7 order was a final order. {39} Wife filed a notice of appeal of the October 7 final order within the thirty-day period required by Rule 12-201. Wife filed a “notice of voluntary abandonment of appeal” three months later on February 2, 2006, pursuant to NMSA 1978, § 39-3-14 (1851-1852), which provides that:

In all causes appealed, or in any other manner brought from any inferior court to any superior court, the party appealing, . . . may, in like manner, dismiss his appeal in the same manner as in the preceding section provided; and when said cause is dismissed, as aforesaid, the judgment in the inferior court shall remain and be in all things as valid, as if said cause had never been removed from said inferior court.

Based on that notice, the appeal was dismissed. No other appeal was initiated until the present appeal was filed on April 4, 2011. {40} Wife argues that the first “appeal is not preclusive of the present appeal.” We agree that the mere fact of a voluntarily dismissed appeal is not by itself preclusive of a second appeal. But neither does the voluntary


abandonment of an appeal confer on an appellant dispensation to avoid the deadline for filing a second appeal. Section 39-3-14 states that, upon voluntary dismissal of an appeal, it is “as if said cause had never been removed from [the] inferior court.” As Wife acknowledges, upon dismissal of an appeal, the parties are returned to their positions as of the entry of judgment in the lower court and retain their right to appeal the judgment subject to the statutes and rules governing appeals. See id.; Rule 12-401(B) NMRA; Rule 12-201. These rules require that an appeal be filed within thirty days. See Rule 12-201(A)(2). Wife was, therefore, obliged to file her appeal to the October 7 order within thirty days, regardless of whether the first appeal was voluntarily dismissed. {41} There is a dearth of New Mexico cases addressing the effect of voluntary dismissal of an appeal directly. Authority from other jurisdictions persuades us that our construc-tion of Section 39-3-14 is correct. In United States v. Arevalo, 408 F.3d 1233, 1237 (9th Cir. 2005), the Ninth Circuit Court of Appeals held that “an appellant who has

voluntarily dismissed his appeal must move to reinstate within the time limits for filing a notice of appeal, or seek an extension of time from the district court to re-file the notice of appeal.” (citation omitted). Accord Williams v. United States, 553 F.2d 420 (5th Cir. 1977) (stating that dismissal of an ap-peal “placed [appellant] in the same position as if they had never filed a notice of appeal in the first place” and stating that “[t]heir next notice of appeal was not filed until over a year after the judgment complained of was handed down [which was] obviously well outside the sixty-day limit”). {42} The appellate courts’ ability under Trujillo to review untimely appeals does not save this appeal. See Trujillo, 117 N.M. at 278, 871 P.2d at 374. Here, Wife does not point to any unusual circumstances that would require extension of the filing dead-line, nor did she request an extension of time to file an appeal. See id.; Rule 12-201(E)(1), (2). Furthermore, the extended period be-tween the October 7 order and the date the appeal was filed—over five years—would stretch the flexibility permitted by Trujillo

well beyond its breaking point. See Trujillo, 117 N.M. at 278, 871 P.2d at 374; Chavez v. U-Haul Co. of N.M., 1997-NMSC-051, ¶¶ 19-22, 124 N.M. 165, 947 P.2d 122 (hearing an appeal where notice was filed fifty-eight minutes late, but declining to hear an appeal filed thirty days late).CONCLUSION{43} In conclusion, there was no juris-dictional bar to the district court’s order voiding the plan. Since the court had juris-diction and the October 7 order resolved all of the issues pertaining to the petition that prompted it, the order was final and appealable. Wife filed this appeal over five years after that order was filed, well beyond the thirty-day deadline, and has provided no extraordinary reason for this Court to consider the untimely appeal. We decline to do so and dismiss the appeal.{44} IT IS SO ORDERED. MICHAEL D. BUSTAMANTE,

JudgeWE CONCUR:JONATHAN B. SUTIN, JudgeTIMOTHY L. GARCIA, Judge


Certiorari Denied, January 29, 2013, No. 33,968Certiorari Granted, February 8, 2013, No. 33,970



Topic Index:Appeal and Error: Cross Appeal; Fundamental Error; Standard of Review;

and Substantial or Sufficient EvidenceConstitutional Law: Vague or Overbroad

Criminal Law: Assault; Breaking and Entering; Burglary; Homicide; Kidnapping; Provocation; and Voluntary Manslaughter

Criminal Procedure: MistrialDomestic Relations: Domestic Relations, General

Jury Instructions: Criminal Jury Instruction; and Failure to Give or Request Statutes: Interpretation; Legislative Intent; and Vagueness

STATE OF NEW MEXICO, Plaintiff-Appellant/Cross-Appellee,

versusGERARD B. PARVILUS,

Defendant-Appellee/Cross-Appellant.No. 30,379 (filed November 28, 2012)

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTYJAMES WAYLON COUNTS, District Judge

opinion

cynthia a. fry, Judge

{1} Defendant was convicted of second degree murder, kidnapping (one count of first degree and one count of second degree), aggravated burglary, aggravated assault, and interference with communications. Defen-dant entered his estranged wife’s apartment without permission, kidnapped his wife’s paramour, and killed the paramour. Later, Defendant also kidnapped and assaulted his wife. On Defendant’s motion for judgment of acquittal notwithstanding the verdict, the district court vacated the conviction for aggravated burglary on the basis of a statute providing that “[n]either husband nor wife . . . can be excluded from the other’s dwell-

GARY K. KINGAttorney General

MARGARET MCLEANAssistant Attorney General

Santa Fe, New Mexicofor Cross-Appellee

ROBERT E. TANGORAROBERT E. TANGORA, L.L.C.

Santa Fe, New Mexicofor Cross-Appellant

ing.” NMSA 1978, § 40-3-3 (1907). The State appeals from this ruling, and Defen-dant cross-appeals, asserting several errors related to jury instructions, sufficiency of the evidence, denial of a motion for mistrial, and the alleged unconstitutional vagueness of our kidnapping statute. We affirm.BACKGROUND{2} In March 2007, Defendant was a non-commissioned officer in the Air Force, stationed in Korea. Defendant’s wife (Wife) was also in the Air Force and volunteered for a temporary deployment in Kuwait, where she began an affair with Victim, a military police officer. Wife ultimately admitted the affair to Defendant but told him that she was not going to continue the relationship with Victim. Over a period of several months in late 2007 and early 2008,

Defendant and Wife discussed the possibil-ity of getting divorced.{3} Wife returned to Alamogordo, New Mexico, in January 2008. Victim joined her there, and they resumed their affair. In February 2008, Wife revealed to Defendant that she had become pregnant with Victim’s child and that she had an abortion. A few days later, Defendant went AWOL, flew from Korea to El Paso, Texas, and drove to Alamogordo, where he checked into a motel.{4} The following day, Defendant bought a screwdriver and a box cutter to use in breaking into Wife’s apartment, and he also purchased a handgun.1 Defendant drove to Wife’s apartment and, leaving the handgun in the car, he crawled in through an open window, whereupon he discovered Victim in the bathroom. Defendant retrieved a hand-gun from a closet and confronted Victim. Defendant then bound Victim with duct tape and proceeded to interrogate Victim. Following this conversation, Defendant cut the duct tape from Victim.{5} Victim and Defendant drove to the motel where Defendant was staying and went to Defendant’s room. According to Defendant’s testimony, Victim insisted on accompanying him to the motel because he believed that Wife had lied to both Victim and Defendant. Also according to Defen-dant, after the two men entered the motel room, Defendant placed the guns and the knife on one of the beds and began to talk to Victim, whereupon Victim grabbed one of the guns and pointed it at Defendant. Defendant testified that he feared he was about to be shot, so he stabbed Victim to death.{6} Defendant then returned to Wife’s apartment. Wife testified that when she arrived at the apartment, Defendant ac-costed her and struck her in the head with a handgun, forced her to drive to the mo-tel, and showed her Victim’s body in the motel room. According to Defendant, he accidentally hit Wife in the head with the gun and she voluntarily accompanied him to the motel. Soon after, Defendant drove with Wife to the office of the New Mexico State Police and turned himself in.{7} Following a trial, the jury found De-fendant guilty of second degree murder, two counts of kidnapping, aggravated burglary, aggravated assault, and interference with communications. Defendant moved for a judgment of acquittal notwithstanding the verdict, arguing in part that his entry into

1Apparently the lease on the apartment was originally in the names of both Wife and Defendant, but at some point prior to Defen-dant’s going AWOL, the apartment’s lessor, Wife, and Defendant agreed that Defendant would be released from any obligations under the lease.


Wife’s apartment was not unauthorized, as required by the burglary statute, because Section 40-3-3 provides that neither spouse can exclude the other from the spouse’s dwelling. The district court agreed and va-cated Defendant’s conviction for aggravated burglary. The State appeals from this de-termination, and Defendant cross-appeals, raising several other issues.DISCUSSION1. The State’s Appeal{8} The State argues that the district court improperly vacated Defendant’s conviction for aggravated burglary. In order to find Defendant guilty of aggravated burglary, the jury had to find, among other elements, that Defendant’s entry into Wife’s apartment was unauthorized. See NMSA 1978, § 30-16-4 (1963) (stating that “[a]ggravated burglary consists of the unauthorized entry of any . . . dwelling” when the person is either armed with a deadly weapon, arms himself with a deadly weapon once inside, or commits a battery on a person in the place entered). The district court determined that Defen-dant’s entry into Wife’s apartment was not unauthorized in light of Section 40-3-3, titled “Separation of property; admission to dwelling of spouse[,]” which states: “Neither husband nor wife has any interest in the property of the other, but neither can be excluded from the other’s dwelling.”{9} “Statutory interpretation is an issue of law, which we review de novo.” State v. Duhon, 2005-NMCA-120, ¶ 10, 138 N.M. 466, 122 P.3d 50. “Our primary goal when interpreting statutory language is to give ef-fect to the intent of the [L]egislature.” State v. Torres, 2006-NMCA-106, ¶ 8, 140 N.M. 230, 141 P.3d 1284. “We do this by giving effect to the plain meaning of the words of [a] statute, unless this leads to an absurd or unreasonable result.” State v. Marshall, 2004-NMCA-104, ¶ 7, 136 N.M. 240, 96 P.3d 801.{10} We have no case law explaining the Legislature’s intent in 1907 when it enacted Section 40-3-3, but the State surmises that it was an aspect of the married women’s property statutes that were enacted in most states in the late nineteenth and early twentieth centuries as “part of a national campaign to sweep away the common law web of limitations and disabilities which had entangled a married woman’s rights to own and dispose of property.” See Jane M. Keenan, Comment, The End of an Era: A Review of the Changing Law of Spousal Burglary, 39 Duq. L. Rev. 567, 570 (2001) (internal quotation marks and citation omitted). This supposition is bolstered by the fact that at the same time it enacted Sec-

tion 40-3-3, our Legislature enacted several other statutes addressing the issue of married women’s property rights. See, e.g., NMSA 1978, § 40-2-1 (1907) (stating that “[h]usband and wife contract toward each other obligations of mutual respect, fidelity and support”); NMSA 1978, § 40-2-2 (1907) (explaining contract rights of husband and wife); NMSA 1978, §§ 40-2-4 to -7 (1907, as amended through 1973) (explaining execution and recording of marriage settle-ment and separation contracts); NMSA 1978, §§ 40-2-8 to -9 (1907) (describing the extent to which husband and wife can contract to alter their legal relationship and consideration for such a contract); NMSA 1978, § 40-3-1 (1907) (stating that “[t]he property rights of husband and wife are governed by this chapter”); NMSA 1978, § 40-3-2 (1907) (stating how husband and wife may hold property).{11} If the State is correct in theorizing that Section 40-3-3 was enacted as part of broader legislation addressing the property rights of married women, this theory does not aid us much in determining whether the statute has the effect of limiting the reach of our criminal burglary statutes when the burglar and the burglary victim are married to each other. If we focus on the statute’s language, it appears that its reach is fairly broad. First, the statute does not appear to contemplate preservation of one “marital home” from which neither spouse can be excluded. Instead, the statute states that neither husband nor wife “can be excluded from the other’s dwelling.” Id. (emphasis added). This language suggests that, even if husband and wife maintain separate residences, neither can exclude the other spouse. Second, there are no limitations of any kind placed on this blanket prohibition against exclusion. As a result, estrangement of the spouses or the many forms of having possession of a residence appear to have no impact on the prohibition.{12} Through the lens of this sweeping prohibition against spousal exclusion, we consider the burglary statutes and our courts’ interpretation of those statutes. Our Supreme Court recently discussed at length the history and purpose of our existing bur-glary statutes in State v. Office of the Public Defender, ex rel. Muqqddin, 2012-NMSC-029, 285 P.3d 622. The Court noted that New Mexico case law has stated that “the purpose of our burglary statute is to protect possessory rights with respect to structures and conveyances, and to define prohibited space.” Id. ¶ 40 (internal quotation marks and citations omitted). The Court stated that “[c]hief among the possessory interests

that burglary is designed to protect is the right to exclude.” Id. ¶ 41 (emphasis added). The Court went on to state that “[t]his right to exclude has been described as perhaps the most fundamental of all property interests.” Id. (internal quotation marks and citation omitted). {13} The Court’s focus on the right to ex-clude dovetails with Section 40-3-3 insofar as Section 40-3-3 appears to eliminate either spouse’s right to exclude the other spouse from the first spouse’s dwelling. Therefore, the plain language of Section 40-3-3 ap-pears to render inter-spousal burglary an impossibility. Applied to the facts in this case, Section 40-3-3 prohibited Wife from excluding Defendant from her apartment and, consequently, his entry into her apart-ment, even with felonious purpose, did not constitute burglary as a matter of law. It was a legal impossibility for his entry to be deemed “unauthorized” as required by our burglary statutes.{14} The State argues against this conclu-sion and relies for support on a New Mexico case and several cases from other jurisdic-tions. None of these cases persuade us that our reading of Section 40-3-3 is wrong.{15} The State first relies on State v. Ru-bio, which involved a defendant charged with breaking and entering his girlfriend’s apartment. 1999-NMCA-018, ¶¶ 1-2, 126 N.M. 579, 973 P.2d 256. The defendant argued that he had the authority to be in his girlfriend’s apartment and, therefore, that he did not commit an “unauthorized entry” as required by the statute criminal-izing breaking and entering. Id. ¶¶ 5-6 (internal quotation marks omitted). He further argued that the instruction given to the jury erroneously stated that an element of the crime was “entry without permission” rather than the statutory language of “unauthorized entry.” Id. ¶¶ 4-5 (internal quotation marks omitted). This Court concluded that because the defendant and his girlfriend maintained separate apartments, the defendant paid no rent on the girlfriend’s apartment, and there was no evidence that the defendant had a key to the girlfriend’s apartment, he did not have “blanket authority to enter the apartment,” and any authority he may have had “was freely revocable” by the girlfriend. Id. ¶¶ 2, 9. Consequently, the district court’s failure to instruct the jury on “unauthorized entry” was not reversible error. Id. ¶ 16 (internal quotation marks omitted).{16} The State argues that the present case is similar to Rubio in that both the burglary statutes and the breaking and entering statute seek to protect possessory interests


rather than ownership interests. As a result, even if Section 40-3-3 protects some sort of property interest Defendant might have had in Wife’s apartment, the State argues, Wife’s possessory interest in the apartment was distinct and was protected by the burglary statutes. The State bolsters its argument by noting that the apartment’s lessor, Wife, and Defendant agreed to release Defendant from the lease’s obligations sometime before the events surrounding Victim’s murder.{17} We are not persuaded that Rubio is relevant to this case. The defendant and the victim in Rubio were not married, so Sec-tion 40-3-3 had no impact on this Court’s analysis. Section 40-3-3 injects into the case before us a factor not present in Rubio, which is the statutory prohibition against one spouse excluding the other from a spousal dwelling. Further, Section 40-3-3 makes no distinction between title to and possession of a spousal dwelling, which is the distinction Rubio relied on. For the same reasons, we are not persuaded by the Colorado case on which the State relies. See People v. Johnson, 906 P.2d 122, 124, 126 (Colo. 1995) (en banc) (reversing the dismissal of burglary and trespass charges against the defendant who had entered his estranged wife’s separately leased apartment, but not involving a non-exclusion statute such as Section 40-3-3). {18} The State more appropriately relies on a case from Ohio and one from California, both of which are states that currently have or once had statutory provisions similar to Section 40-3-3. In State v. Lilly, the Ohio Supreme Court addressed the impact of a non-exclusion statute on the prosecution of one spouse for the burglary of the other spouse’s residence. 717 N.E.2d 322, 325 (Ohio 1999). The Ohio statute, like New Mexico’s Section 40-3-3, provides that “[n]either husband nor wife has any interest in the property of the other” and that “[n]either can be excluded from the other’s dwelling.” Ohio Rev. Code Ann. § 3103.04 (1953). The only difference is that the Ohio statute provides an exception to the exclu-sion prohibition when a spouse has obtained a court order allowing exclusion. Id. The court in Lilly concluded that the statute did not preclude burglary by one spouse of the other spouse’s residence for two primary reasons. First, the non-exclusion statute was in a domestic relations chapter of the Ohio code, and the Court determined that the statute “was intended to address property ownership rights of married persons, mat-ters of a civil nature,” and “not meant to be enforced criminally.” 717 N.E.2d at 326. Second, “the purpose of [the] burglary law

is to protect the dweller” such that “custody and control, rather than legal title, is dis-positive.” Id. at 327. Because the defendant had no right of custody or control over his estranged wife’s separately leased residence, the jury could reasonably find that the de-fendant trespassed in the wife’s apartment, where trespass was an element of the crime of burglary. Id. at 325, 327-28.{19} The California case relied on by the State focused on the alleged burglar’s in-tent in entering the residence in question. See People v. Sears, 44 Cal. Rptr. 330, 336 (1965), overruled on other grounds by People v. Cahill, 20 Cal. Rptr. 2d 582 (1993) (in bank). In Sears, the California Supreme Court cited the non-exclusion statute, which has since been repealed, see West’s Ann. Cal. Civ. Code § 5102 (1994), but did not discuss it. Sears, 44 Cal. Rptr. at 336. The court in Sears stated simply that “[o]ne who enters a room or building with the intent to commit a felony is guilty of burglary even though permission to enter has been extended to him personally or as a member of the public. The entry need not constitute a trespass.” Id. (citation omit-ted). Because the defendant in Sears had the intent to commit an assault when he entered what had been his home before he separated from his wife, the court had no difficulty rejecting the defendant’s contrary argument. Id.{20} Although the State does not cite a later California case, People v. Davenport, 268 Cal. Rptr. 501 (Ct. App. 1990), it is instructive because, unlike the California Supreme Court in Sears, the California Court of Appeal actually addressed Cali-fornia’s non-exclusion statute. That statute, like New Mexico’s Section 40-3-3, provided, “[N]either husband nor wife has any interest in the separate property of the other, but neither can be excluded from the other’s dwelling.” Cal. Civ. Code § 5102; see Dav-enport, 268 Cal. Rptr. at 503. The court in Davenport rejected the defendant’s argument that the non-exclusion statute precluded his conviction for burglarizing the residence in which his estranged wife was living. Id. at 502, 505. In doing so, the court relied on case law interpreting the non-exclusion statute as relating to “the marital right of the spouses to occupy the family home” and on the holding in Sears. Davenport, 268 Cal. Rptr. at 503-04 (internal quotation marks and citation omitted). Thus, to the extent the defendant in Davenport had any right of entry under the non-exclusion statute, it was “qualified to a lawful purpose.” Id. at 505.{21} Although the results in these cases

from Ohio and California seem “correct” in the moral sense, we are not persuaded by their rationale. With respect to the Ohio Supreme Court’s rationale in Lilly, we see nothing in Section 40-3-3 indicating that it applies only in the civil context, nor has the State cited any authority stating that civil statutes cannot circumscribe criminal statutes. And, as we have already mentioned, our burglary statutes’ purpose in protecting possessory rights rather than ownership rights leads us squarely into the wall created by the exclusion proscription of Section 40-3-3. Our burglary statutes protect the pos-sessory right to exclude, and Section 40-3-3 dictates that spouses have no such right. See Office of the Pub. Defender, 2012-NMSC-029, ¶ 41 (explaining that “[c]hief among the possessory interests that burglary is designed to protect is the right to exclude”). As for the California cases, according to the court in Sears, unauthorized entry is not even an element of burglary in California as it is in New Mexico. The Sears court stated that even a person entering a building with permission can be guilty of burglary if that person has the intent to commit a felony. Sears, 44 Cal. Rptr. at 336. As a result, we cannot square the California cases’ reason-ing with our burglary statutes’ requirement of unauthorized entry, particularly where the effect of our non-exclusion statute is to immunize an otherwise unauthorized entry.{22} More importantly, the Ohio and California courts, as a matter of policy, appear to have simply brushed aside the non-exclusion statutes. In our view, it is not our role to dictate what constitutes sound public policy because that is a matter best left to the Legislature. See Torres v. State, 119 N.M. 609, 612, 894 P.2d 386, 389 (1995) (explaining that “it is the particular domain of the [L]egislature, as the voice of the people, to make public policy” and that “[c]ourts should make policy . . . only when the body politic has not spoken”). If the Legislature wants to limit the reach of Section 40-3-3, it can amend or repeal it.{23} We appreciate the policy concerns underlying the courts’ decisions in Lilly and Davenport—concerns that may well moti-vate our Legislature to clarify the impact it intends Section 40-3-3 to have on the crime of burglary. Inter-spousal burglary com-monly leads to domestic violence. See, e.g., State v. O’Neal, 721 N.E.2d 73, 77-78 (Ohio 2000) (describing a defendant breaking into estranged wife’s separately leased residence and then shooting his wife and injuring his son); Sears, 44 Cal. Rptr. at 333 (describing husband entering estranged wife’s residence, injuring wife, and killing wife’s daughter);


see also 39 Duq. L. Rev. 567 (describing numerous cases of inter-spousal burglary culminating in domestic violence). Some may be troubled that because of Section 40-3-3, the mere fact of marriage provides immunity to someone who burglarizes the residence of an estranged spouse. However, it is for the Legislature to determine whether to amend the statute to eliminate this im-munity.2. Defendant’s Cross-Appeal{24} In his cross-appeal, Defendant makes five arguments for reversal of his convic-tions: (1) the district court erroneously refused to give Defendant’s requested in-struction on the definition of sufficient provocation in connection with the crime of voluntary manslaughter, (2) there was in-sufficient evidence supporting Defendant’s conviction for first degree kidnapping, (3) the kidnapping statute is unconstitutionally vague and therefore void, (4) the district court’s failure to provide the jury with use instructions for the special verdict forms constitutes fundamental error, and (5) the district court should have granted Defen-dant a mistrial when jurors saw him arrive at court in a sheriff’s vehicle.a. Instruction on Sufficient Provocation{25} The district court instructed the jury on the elements of voluntary manslaughter, including the explanation that “[t]he dif-ference between second degree murder and voluntary manslaughter is sufficient provo-cation.” Defendant tendered an instruction defining sufficient provocation according to UJI 14-222 NMRA, which states:

“Sufficient provocation” can be any action, conduct or circumstances which arouse anger, rage, fear, sudden resentment, terror or other extreme emotions. The provoca-tion must be such as would affect the ability to reason and to cause a temporary loss of self control in an ordinary person of average disposi-tion. The “provocation” is not suf-ficient if an ordinary person would have cooled off before acting.

Defendant’s tendered instruction added the following language, which is not part of UJI 14-222: “A series of events over a consider-able period of time may constitute sufficient provocation.” As authority supporting this addition, Defendant cited State v. Benavidez, 94 N.M. 706, 616 P.2d 419 (1980). The district court refused Defendant’s requested instruction and instead instructed the jury according to UJI 14-222. Defendant ar-gues that the district court’s refusal of his tendered instruction was reversible error. He maintains that the additional language,

supported by Benavidez, would have ex-plained to the jury that events over a period of time could constitute provocation and that without this language, the jury was allowed to speculate.{26} Because Defendant preserved this issue by tendering the desired instruction, we review for reversible error. State v. Cab-ezuela, 2011-NMSC-041, ¶ 21, 150 N.M. 654, 265 P.3d 705. “Reversible error arises if . . . a reasonable juror would have been confused or misdirected.” Id. ¶ 22 (altera-tion in original) (internal quotation marks and citation omitted). Juror confusion or misdirection may arise from an instruction “which, through omission or misstatement, fail[s] to provide the juror with an accurate rendition of the relevant law.” Id. (internal quotation marks and citation omitted).{27} We are not persuaded that Benavidez supports the additional instruction language sought by Defendant. In Benavidez, our Supreme Court concluded that there was enough evidence of sufficient provocation to support an instruction on voluntary manslaughter. 94 N.M. at 708, 616 P.2d at 421. The Court cited evidence of the victim’s conduct, which apparently occurred long before the defendant killed the victim, that constituted evidence of sufficient provoca-tion. Id. However, there is nothing in the case suggesting that anything other than the UJI instruction was requested or necessary.{28} We do not read the holding in Bena-videz as a requirement to instruct a jury that events over a period of time can constitute sufficient provocation. Furthermore, the instruction given in this case did not rule out the notion that sufficient provocation could arise from events occurring over a period of time. In addition, our Supreme Court has not seen fit to change UJI 14-222 in the thirty-two years since Benavidez was decided. We therefore fail to see how the instruction given could have confused or misled the jury. See UJI Crim. General Use Note NMRA (stating that “when a uniform instruction is provided for the elements of . . . a defense . . . , the uniform instruction must be used without substantive modifica-tion or substitution”).b. Sufficiency of Evidence Supporting

Kidnapping Conviction{29} In order to convict Defendant of first degree kidnapping, the jury had to find beyond a reasonable doubt:

1. [D]efendant took, re-strained, confined, or transported [Victim] by force, intimidation or deception;

2. [D]efendant intended to hold [Victim] against [Victim’s]

will: to inflict death or . . . physical injury on [Victim]

ORfor the purpose of making

[V]ictim do something or for the purpose of keeping [V]ictim from doing something;

3. [D]efendant was not suf-fering from a mental disease or disorder at the time the offense was committed to the extent of being incapable of forming the intention to hold [Victim] to inflict death or physical injury or for the purpose of making [V]ictim do something or for the purpose of keeping [V]ictim from doing something.

4. This happened in New Mex-ico on or about the 22nd day of February, 2008.

The jury could have reduced the convic-tion to second degree kidnapping by find-ing that Defendant “voluntarily free[d V]ictim in a safe place and [did] not inflict physical injury or a sexual offense upon [V]ictim.” NMSA 1978, § 30-4-1(B) (2003). However, the jury answered special verdict questions and unanimously found against Defendant on the elements of freeing Vic-tim in a safe place without physical injury. The commission of a sexual offense was not at issue. {30} Defendant argues that there was insuf-ficient evidence that he failed to free Victim in a safe place because he released Victim from the duct tape at Wife’s apartment and there was no evidence that Victim was injured by the restraint up to that point. Defendant further argues that there was no indication that he restrained Victim in any way after that. He notes that security camera photos at the motel show Defendant entering his motel room ahead of Victim.{31} In reviewing for sufficiency of the evidence, we consider whether substantial evidence exists to support a verdict of guilty beyond a reasonable doubt with respect to every element of the crime charged. State v. Godoy, 2012-NMCA-084, ¶ 16, 284 P.3d 410. “We review the evidence in the light most favorable to the verdict, resolving all conflicts and indulging all reasonable infer-ences in favor of the verdict.” Id. (internal quotation marks and citation omitted).{32} Although Defendant testified that he freed Victim from the duct tape because he no longer had a “problem” with him, that Victim insisted on driving Defendant to the motel, and that Defendant did not force Victim to go to the motel, the jury was free to reject this testimony. See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M.


438, 971 P.2d 829 (“Contrary evidence supporting acquittal does not provide a basis for reversal because the jury is free to reject [the d]efendant’s version of the facts.”).{33} There was other substantial evidence supporting the conviction for kidnapping. Defendant was armed with a knife and two guns when he and Victim left Wife’s apartment, the surveillance photos show Defendant with his hands in his pockets when he and Victim entered the motel room, and Victim left his watch and his wallet at the apartment. From this evidence, the jury could reasonably infer that Victim did not leave the apartment and accompany Defendant to the motel willingly because he feared that Defendant might use one of the handguns if he tried to escape. This inference was buttressed by Wife’s testimony that Defendant was armed with the same guns when he later forced her to accompany him to the motel and that she did not try to escape from Defendant when they subse-quently drove to the police station because she was afraid Defendant would shoot her.c. Alleged Vagueness of the

Kidnapping Statute{34} Defendant argues that the kidnapping statute as amended in 2003 is unconsti-tutionally vague and therefore should be deemed void. Specifically, Defendant claims that the 2003 amendment, which replaced “great bodily harm” with “physical injury,” turned all kidnappings and false imprison-ments into first degree kidnapping because “physical injury” is not defined. The current form of the statute provides:

A. Kidnapping is the unlawful taking, restraining, transporting or confining of a person by force, intimidation or deception, with intent:

(1) that the victim be held for ransom;

(2) that the victim be held as a hostage or shield and confined against his will;

(3) that the victim be held to service against the victim’s will; or

(4) to inflict death, physical injury or a sexual offense on the victim.

B. Whoever commits kidnap-ping is guilty of a first degree felony, except that he is guilty of a second degree felony when he voluntarily frees the victim in a safe place and does not inflict physical injury or a sexual offense upon the victim.

Section 30-4-1. The 2003 amendment sub-stituted “physical injury or a sexual offense”

for “great bodily harm” in Subsection B.{35} We review void-for-vagueness claims under a de novo standard. State v. Green-wood, 2012-NMCA-017, ¶ 39, 271 P.3d 753, cert. denied, 2012-NMCERT-001, __ P.3d __. “A strong presumption of consti-tutionality underlies each legislative enact-ment, and the party challenging constitu-tionality has the burden of proving a statute is unconstitutional beyond all reasonable doubt.” Id. (internal quotation marks and citation omitted). To determine whether a statute is unconstitutionally vague, we consider: “(1) whether the statute gives fair notice to persons of ordinary intelligence as to the conduct it prohibits, and (2) whether the statute sets standards and guidelines suf-ficient to avoid arbitrary and discriminatory enforcement.” Id. ¶ 40.{36} As an aside, we note that Defendant mentions equal protection and strict scru-tiny in his brief, but he does not explain or flesh out any contention that the kid-napping statute violates equal protection. We therefore decline to consider such an argument, to the extent that Defendant has attempted to make one. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076. (ex-plaining that the appellate court “will not review unclear arguments, or guess at what [a party’s] arguments might be”).{37} As for his void-for-vagueness argu-ment, Defendant does not provide any explanation for why he thinks the term “physical injury” fails to provide notice to an ordinary person as to what conduct is be-ing prohibited. Instead, he simply asserts in conclusory fashion that the term allows law enforcement, prosecutors, and fact finders “to engage in arbitrary and discriminatory enforcement of the statute.” State v. Laguna, 1999-NMCA-152, ¶ 26, 128 N.M. 345, 992 P.2d 896 (stating the standard for assess-ing whether a statute is unconstitutionally vague).{38} We fail to see how a person of ordinary intelligence would not understand what “physical injury” means. A rational juror would understand that the law intends a greater punishment for a kidnapper who fails to release his or her victim in a safe place without inflicting physical injury. We have already concluded that substantial evidence supported the jury’s view that Defendant failed to release Victim without physical injury; Victim’s death caused by Defendant clearly falls within the definition of “physical injury.” See id. ¶ 24 (stating that an appellate court reviews a void-for-vagueness challenge “in light of the facts of the case and the conduct which is prohibited by the statute”

(internal quotation marks and citation omit-ted)). The statute is not unconstitutionally vague.d. Failure to Provide Jury With

Instructions for Special Verdict Forms

{39} Because there was an issue as to whether Defendant voluntarily released Victim in a safe place without inflicting physical injury, the district court provided the jury with special verdict forms asking the following:

Do you unanimously find be-yond a reasonable doubt that [D]efendant did not voluntarily free [Victim] in a safe place?

_____ (Yes or No) _______________ Foreperson

Do you unanimously find be-yond a reasonable doubt that [D]efendant inflicted physical injury upon [Victim]?

_____ (Yes or No) _______________ ForepersonThese questions were consistent with UJI 14-6018 NMRA, and the jury answered each question in the affirmative.{40} However, the district court failed to provide the jury with the use instructions that, according to UJI 14-6018, precede the special verdict questions. The State tendered the preliminary instructions, but apparently due to an oversight, the instruc-tions never made it into the jury’s packet. Those instructions tell the jury that if it finds the defendant guilty of kidnapping, then it must determine whether the defendant voluntarily freed the victim, whether the defendant inflicted physical injury on the victim, or, in appropriate circumstances, whether the defendant committed a sexual offense. The instructions also tell the jury that in order to answer “yes” to any question, the state must prove the factors beyond a reasonable doubt. Id.{41} At trial, Defendant did not object to the district court’s failure to provide the jury with these instructions. Therefore, he argues that the court’s failure constituted fundamental error requiring reversal of his kidnapping convictions. See Rule 12-216(B)(2) NMRA (stating that despite a lack of preservation, the reviewing court can con-sider, among other matters, fundamental error or fundamental rights of a party).{42} Fundamental error occurs only in “cases with defendants who are indisputably innocent, and cases in which a mistake in the process makes a conviction fundamen-tally unfair notwithstanding the apparent


guilt of the accused.” State v. Barber, 2004-NMSC-019, ¶ 17, 135 N.M. 621, 92 P.3d 633. When the alleged error involves jury instructions, we first consider “whether a reasonable juror would have been confused or misdirected by the jury instruction.” Id. ¶ 19. We consider the claim of error “in the context of jury instructions as a whole.” State v. Reed, 2005-NMSC-031, ¶ 55, 138 N.M. 365, 120 P.3d 447.{43} Defendant’s perfunctory argument is that the failure to include the preliminary instructions meant that “the jury had no basis to understand what purpose[] [the special verdict forms] served.” We are not persuaded that the absence of the prelimi-nary instructions resulted in the jury’s con-fusion regarding the special verdict forms. The prosecutor discussed the special verdict forms in her closing argument and explained that in connection with kidnapping, the jury would have to decide whether Defen-dant voluntarily freed Victim and Wife. The questions on the special verdict forms were self-explanatory. In addition, the jury under-stood the forms well enough to distinguish between the alleged kidnappings of Victim and Wife because the jury answered “no” in response to the question, “Do you unani-mously find beyond a reasonable doubt that [D]efendant did not voluntarily [release Wife] in a safe place?” We conclude that the absence of the preliminary instructions to

the special verdict forms did not constitute fundamental error.e. Propriety of Mistrial{44} Early in the trial, defense counsel moved for a mistrial on the ground that four jurors had seen Defendant arrive at the courthouse seated in the back of a police car. The district court denied the motion, and Defendant asserts that this was error. The district court’s ruling on a motion for a mistrial is addressed to the court’s sound discretion and will not be disturbed absent a showing of abuse of discretion. State v. Fry, 2006-NMSC-001, ¶ 52, 138 N.M. 700, 126 P.3d 516. {45} The district court relied on State v. Holly, 2009-NMSC-004, 145 N.M. 513, 201 P.3d 844 in denying Defendant’s mo-tion. In that case, the defendant failed to preserve the issue but argued on appeal that he was prejudiced when a member of the jury may have seen him in handcuffs. Id. ¶ 40. Reviewing the argument for fundamen-tal error, this Court concluded that there was no such error because it was unclear whether the juror actually saw the defendant in handcuffs and whether the exposure was “anything more than inadvertent or insig-nificant.” Id. ¶ 42 (internal quotation marks omitted).{46} In this case, as in Holly, no evidence was introduced establishing that any jurors actually saw Defendant in the police car

and, if they did see Defendant, there is no indication that the exposure was not inadvertent. Although Holly was decided under a fundamental error standard, we have additional case law reviewing similar claims under an abuse of discretion standard and holding that inadvertent exposure to a defendant in handcuffs did not prejudice the defendant. See, e.g., State v. Mills, 94 N.M. 17, 21-22, 606 P.2d 1111, 1115-16 (Ct. App. 1980) (affirming denial of mistrial mo-tion where the defendant was inadvertently seen by jurors in handcuffs); State v. Gomez, 82 N.M. 333, 334, 481 P.2d 412, 413 (Ct. App. 1971) (affirming denial of motions to strike jury panel and for mistrial where jurors saw the defendant in handcuffs before trial and during recess). Moreover, it would certainly be no surprise to jurors that some-one accused of murder would be in custody. We fail to see how seeing Defendant in the back of a police car prejudiced him to the extent necessary to warrant a mistrial.CONCLUSION{47} For the foregoing reasons, we affirm the judgment of the district court.{48} IT IS SO ORDERED. CYNTHIA A. FRY, JudgeWE CONCUR:MICHAEL E. VIGIL, JudgeJ. MILES HANISEE, Judge


Certiorari Not Applied For



Topic Index:Appeal and Error: Attorney Fees; Preservation of Issues for Appeal; Remand;

Standard of Review; and Substantial or Sufficient EvidenceFederal Law: Federal Law, General

Property Law: Landlord Tenant; and Leases and Leaseholds

OSCAR SERNA,Plaintiff-Appellee,

versusJONITA GUTIERREZ,

Defendant-Appellant.No. 30,910 (filed December 3, 2012)

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTYC. SHANNON BACON, District Judge

opinion

tiMothy l. garcia, Judge

{1} The district court issued an opinion and order affirming a metropolitan court judg-ment that awarded Oscar Serna (Landlord) restitution of the premises rented under a federal housing program based on Jonita Gutierrez’s (Tenant) failure to timely pay rent for two months and Tenant’s delay in the payment of a portion of her security deposit. Tenant appeals the district court’s order, arguing that the metropolitan court terminated the tenancy without comply-ing with the federal requirements for ter-mination and eviction. Because Landlord failed to demonstrate a serious violation of the lease during its first one-year term, we reverse and remand this matter to the metropolitan court for further proceedings.FACTS{2} Tenant rented a residential property from Landlord for a one-year term begin-ning July 1, 2009 (the Lease). The Lease was entered into as part of a federal government rent-subsidy assistance program commonly known as the Section 8 housing program. See 42 U.S.C. § 1437f (2009) (amended 2011). The applicable federal regulations relevant to the parties dispute are codified at 24 C.F.R. § 982.310 (2010) (owner ter-

DONAVON A. ROBERTSAlbuquerque, New Mexico

for Appellee

SHANNON A. PARDENOLSEN, PARDEN & CROW, P.C.

Albuquerque, New Mexicofor Appellant

mination of tenancy). A housing assistance payment contract was also executed by the parties and the public housing agency, Albuquerque Housing Services, in order to comply with the requirements to participate in the Section 8 housing program. See 24 C.F.R. § 982.305(c) (2004). Under the Sec-tion 8 housing program, the Department of Housing and Urban Development (HUD) enables tenants on public aid to acquire rental housing for a percentage of their public assistance income, while the federal government guarantees to the landlord that it will pay the balance of the fair rental value of a rental unit. See 42 U.S.C. § 1437f.{3} The Lease began on July 1, 2009, and required Tenant to pay a $700 security de-posit. The rent for the term of the Lease was $538 per month. The amount to be paid by federal public housing assistance was $446 per month. Tenant’s monthly payment was $92. If the rent was not paid in full on the first day of the month, the Lease authorized Landlord to charge a $35 late payment fee. The Lease permitted Landlord to terminate the tenancy if Tenant committed a serious violation of the Lease or a violation of federal, state, or local law. It also permitted Landlord to terminate the Lease for other good cause but only after the completion of the first one-year term of the Lease. It is not disputed that Landlord’s petition to

terminate the Lease occurred on August 13, 2009, during the first one-year term of the Lease.{4} Tenant moved into the premises on June 28, 2009. Tenant paid $100 of the security deposit prior to moving in and was told that she owed $74 in rent for the three days that she occupied the premises during the month of June. In June, Tenant wrote two checks to Landlord in an attempt to pay rent for the month of June and the $600 balance remaining on the security deposit. When Landlord’s wife attempted to cash the checks, she discovered that they were written from a closed account. Tenant failed to make any further payments toward the amount claimed to be due for June rent. Tenant did pay the $600 remainder of the security deposit on October 1, 2009. {5} In July and August, Tenant’s rent pay-ments were delivered after the first day of the month and were subject to a late charge under the Lease. Tenant did not pay her portion of the July rent until July 17, 2009. Her July rent payment was late because Al-buquerque Housing Services did not mail Tenant her federal public assistance check and the letter advising Tenant that her por-tion of the monthly rent payment was $92 until July 13, 2009. Tenant mailed her por-tion of the August rent on August 3, 2009, the same day that she received her federal public assistance check. By early October 2009, Tenant had fully paid the security deposit and was current on all her monthly rent payments under the Lease.{6} On August 13, 2009, Landlord filed a petition for restitution against Tenant, al-leging that he was entitled to possession of the premises because Tenant had breached the Lease by failing to pay the full security deposit, the June rent, and the full amount of rent for July and August. Landlord’s pe-tition did not assert any claim that Tenant committed a violation of law. At the time of his petition, Landlord claimed that the monthly rent amount for the property was $875 per month. Tenant answered the peti-tion, asserting that she had paid the Lease amount of $538 per month and that she had paid $100 of the security deposit. She argued that the parties had agreed that she could pay the $600 remainder of the secu-rity deposit by October 2009, and alleged that Landlord’s petition was an attempt at retaliation for her complaint to Landlord about a plumbing problem.{7} The metropolitan court held two hearings to address the issues in this case. After hearing testimony from both parties, the metropolitan court found that the case came down to credibility. It found much of


Tenant’s testimony troubling. Although the court heard testimony regarding Tenant’s prior criminal convictions involving bad checks, theft, and fraud, its findings related to Tenant’s credibility were based on the substance of her testimony, not her prior criminal convictions.{8} Ultimately, the metropolitan court found that the testimony from Landlord, his wife, and his sister was more credible than Tenant’s testimony. As a result, the metropolitan court entered a judgment for restitution in favor of Landlord and terminated the Lease. The metropolitan court judgment restored the premises to Landlord and awarded Landlord $144 for past-due rent, $117 for costs, and $4,000 for attorney fees. The past-due rent amount was calculated by adding Tenant’s $74 unpaid June rent with two $35 late rent payment fees for the months of July and August.{9} Tenant appealed the metropolitan court judgment to the district court. On appeal, she raised six issues: (1) that the metropolitan court erred in finding that she did not pay the June rent; (2) whether any failure to pay the June rent could be used to evict her when the Lease was not even in effect in June; (3) whether the met-ropolitan court erred in allowing Landlord to introduce Tenant’s criminal background; (4) whether the metropolitan court violated Tenant’s Section 8 property interest in the Lease by evicting Tenant without finding a material violation of the Lease; (5) whether the metropolitan court erred in denying Tenant’s counterclaim for retaliation; and (6) whether the metropolitan court erred in awarding Landlord attorney fees and costs. After reviewing arguments by the parties and the metropolitan court record, the district court affirmed the judgment of the metropolitan court.{10} Like the metropolitan court, the dis-trict court found that the case was largely one of credibility. As such, it affirmed the findings of the metropolitan court, as a fact finder, with regard to Tenant’s retaliation counterclaim, Tenant’s failure to timely pay the June rent, and Tenant’s version of events with regard to the security deposit. The district court found that Tenant failed to preserve her argument regarding the ter-mination of the Lease based upon any failure to timely pay her June rent but noted that the metropolitan court decision did not con-sider the June rent when it ruled in favor of Landlord. Instead, the district court found that the metropolitan court ruled in favor of Landlord because it rejected Tenant’s version of events with regard to the security deposit. The district court determined that Tenant’s

failure to pay her security deposit within the first three months of the one-year Lease was a violation of her Section 8 tenancy.{11} The district court also found that Tenant failed to preserve her legal argument that the metropolitan court erred in evicting her without finding a material violation of the Lease. However, the court did briefly address the issue. It concluded that the metropolitan court implicitly determined that Tenant’s “failure to timely pay $600 of a $700 security deposit constituted good cause or a serious violation of the [L]ease,” and that this determination was not error.{12} With regard to attorney fees, the district court found that the metropolitan court did not err in determining that, as the prevailing party, Landlord was entitled to attorney fees. It explained that while the $4,000 award of attorney fees was a large sum, Tenant had requested $10,000 in at-torney fees. It also concluded that Tenant never argued to either the district court or the metropolitan court that Landlord’s attorney fee request was unreasonable; she instead argued that Landlord was simply not entitled to attorney fees because both par-ties won and lost issues in the case. Tenant timely appealed the district court judgment restoring the property to Landlord and ordering Tenant to pay past-due rent, fees, and costs.STANDARD OF REVIEW{13} Because this was an appeal from an on-record metropolitan court trial, the district court reviewed the case in its ap-pellate capacity for legal error. See NMSA 1978, § 34-8A-6(b) (1993); State v. Trujillo, 1999-NMCA-003, ¶ 4, 126 N.M. 603, 973 P.2d 855 (“For on-record appeals the district court acts as a typical appellate court, with the district judge simply reviewing the record of the metropolitan court trial for legal error.”). We apply the same review on appeal, determining whether there was legal error in the district court’s determination. See Trujillo, 1999-NMCA-003, ¶ 4.DISCUSSION{14} Tenant argues on appeal that the dis-trict court erred in affirming the metropoli-tan court’s judgment. Tenant argues that the metropolitan court erroneously terminated the Lease due to Tenant’s non-payment of the June rent and without Landlord estab-lishing the statutory requirements to termi-nate, that substantial evidence supported her counterclaim for retaliation, and that the metropolitan court erred in awarding attorney fees to Landlord.Termination of the LeasePreservation{15} We first address whether Tenant

adequately preserved her objections with regard to termination of the Lease. Tenant argues on appeal that it was error for the metropolitan court to terminate the Lease without finding a material violation of the Lease. Tenant further argues that it was er-ror for the metropolitan court to consider Tenant’s non-payment of June rent as part of the basis for terminating the Lease. Ten-ant appealed both of these issues to the district court, and the district court held that neither issue was preserved for review. As such, Tenant asks this Court to review her claim for fundamental error. Landlord responds that the doctrine of fundamental error is inapplicable to Tenant’s appeal and argues that this Court should not consider the merits of Tenant’s unpreserved appellate arguments.{16} The metropolitan court decision to terminate the Lease reflects a finding that Tenant’s payment of the security deposit in October and her late rental payments for July and August constituted good cause or a serious violation of the lease. Without such a finding, there was no contractual basis for Landlord to terminate the Lease. The only grounds for Landlord to terminate the Lease during the first year’s term were for a “seri-ous violation of the terms and conditions of the Lease” or a violation of “federal, [s]tate, or local law.” “Other good cause” was not a proper ground for termination of the Lease during this first term. The burden was on Landlord to present evidence to establish his basis to terminate the Lease. See Atma v. Munoz, 48 N.M. 114, 120, 146 P.2d 631, 634 (1944) (recognizing that the burden is on the landlord in a lease dispute to establish that “the lease contract had been breached and that such breach entitled [the landlord] to the possession of the property in question”); Cunningham v. Springer, 13 N.M. 259, 285, 82 P. 232, 236-37 (1905) (recognizing that the plaintiff bears the initial burden of proof to establish the existence of a contract and the terms to be enforced under it), aff’d, 204 U.S. 647 (1907). Tenant has the right to appeal this ruling in Landlord’s favor. See Rule 1-073(O) NMRA (stating that to preserve a question for review by the district court in an appeal on the record, it must appear that a ruling or decision by the metropoli-tan court was fairly invoked, that if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice the party, and that the rule shall not pre-clude the district court from considering jurisdictional questions or, in its discretion, questions involving general public interest


or fundamental error or fundamental rights of a party). Where Tenant’s appeal is based upon whether the Landlord’s evidence met the contractual requirements for termina-tion, she has adequately preserved this issue by alerting the court to the insufficiency of Landlord’s evidence to meet the required legal standard expressly stated in the Lease. See Romero v. Mervyn’s, 109 N.M. 249, 253 n.2, 784 P.2d 992, 996 n.2 (1989) (explain-ing that a party has adequately preserved a challenge to the sufficiency of evidence when that party specifically calls the lack of substantial evidence on a material issue to the lower court’s attention).{17} Although the district court held that Tenant’s appeal was not preserved for review, the record reflects that it addressed the mer-its of Tenant’s appellate issues. See Woolwine v. Furr’s, Inc., 106 N.M. 492, 496, 745 P.2d 717, 721 (Ct. App. 1987) (“To preserve a question for review it must appear that [a ruling or decision by the district court was] fairly invoked[.]”). In doing so, the district court both recognized and affirmed the metropolitan court’s implicit determination that Landlord met the legal requirements to terminate the Lease entered into by the par-ties on the basis of good cause or a serious lease violation.{18} The primary purpose of the rule for preservation is to ensure “(1) that the [dis-trict] court be alerted to the error so that it is given an opportunity to correct the mistake, and (2) that the opposing party be given a fair opportunity to meet the objection.” Gracia v. Bittner, 120 N.M. 191, 195, 900 P.2d 351, 355 (Ct. App. 1995); see Rule 12-216(A) NMRA. Both purposes of the preservation requirement were met in this case. The issue of whether Landlord met the contract requirements for termination the Lease were fully contested by Tenant in metropolitan court, and any implicit determination regarding how Landlord actually met the burden of proof does not defeat Tenant’s opportunity to appeal that determination. We conclude that Tenant properly preserved for appellate review in the district court and in this Court the argument that the metropolitan court im-properly terminated the Lease based upon the evidence presented by Landlord.Termination of a Section 8 Tenancy{19} The Lease in this case was formed un-der the Section 8 Housing Choice Voucher Program. See 42 U.S.C. § 1437f(o). The language of the Lease mirrors the federal regulation, which permits a landlord to terminate a tenancy if a tenant commits a “[s]erious violation [of the terms and condi-tions of the lease] (including but not limited

to failure to pay rent or other amounts due under the lease)[,]” 24 C.F.R. § 982.310(a)(1), or for “[o]ther good cause,” 24 C.F.R. § 982.310(a)(3). However, the terms of the Lease explicitly state that Landlord may not terminate for other good cause within the first one-year term of the Lease. As such, the only material issue in this appeal is whether Tenant committed a serious violation of the Lease—not whether Landlord had other good cause to terminate the Lease.{20} Analysis of the claims of the parties requires an understanding of the Section 8 housing program. The Section 8 housing program exists “[f ]or the purpose of aiding low-income families in obtaining a decent place to live and of promoting economically mixed housing.” 42 U.S.C. § 1437f(a). The Section 8 program is a cooperative venture between HUD, the state, and local public housing agencies, which oversee the day-to-day operations of the Section 8 program. 42 U.S.C. § 1437f(b). While state and local housing agencies contract with landlords who own dwelling units to make assistance payments, HUD enters into annual con-tribution contracts with the agencies. 42 U.S.C. § 1437f(b)(1). Although it is the local public housing authorities that actu-ally run the Section 8 program, they must do so in accordance with applicable federal regulations. See 24 C.F.R. § 982.52 (1995). The Section 8 housing program in New Mexico must also comply with applicable state law. See Carol Rickert & Assocs. v. Law, 2002-NMCA-096, ¶¶ 9-14, 132 N.M. 687, 54 P.3d 91 (analyzing the non-renewal of a lease under the Section 8 housing program and whether the landlord’s notice complied with federal law and was unequivocal under New Mexico law).{21} The present appeal requires this Court to interpret the statutory requirements for an owner’s termination of a tenancy under the Section 8 housing program and to review the metropolitan court’s application of the federal standard in the particular cir-cumstances of this case. Our appellate review, therefore, requires this Court to determine whether the district court correctly applied the law to the facts. State v. Kerby, 2007-NMSC-014, ¶ 11, 141 N.M. 413, 156 P.3d 704. As the relevant facts are not in dispute, the appropriate standard of review is de novo. Garcia v. Jeantette, 2004-NMCA-004, ¶ 15, 134 N.M. 776, 82 P.3d 947; see State v. At-taway, 117 N.M. 141, 144, 870 P.2d 103, 106 (1994) (“If . . . the question requires us to consider legal concepts in the mix of fact and law and to exercise judgment about the values that animate legal principles, then the concerns of judicial administration will

favor the appellate court, and the question should be classified as one of law and re-viewed de novo.” (internal quotation marks and citation omitted)); Morgan Keegan Mortg. Co. v. Candelaria, 1998-NMCA-008, ¶ 5, 124 N.M. 405, 951 P.2d 1066 (reviewing de novo a lower courts construc-tion of a statute). In this case, before we can review the lower court’s application of the facts to the federal statute, we must clarify the factual basis for Landlord’s termination of the Lease.{22} Tenant argues that it was error for the metropolitan court to consider non-payment of her June rent as part of the basis for the termination of the Lease and her eviction. However, in affirming the metro-politan court’s judgment, the district court explicitly stated that the metropolitan court ruled in favor of Landlord “based on its re-jection of [Tenant’s] version of events with regard to the security deposit.” It concluded that it was not error for the metropolitan court to implicitly determine that “failure to timely pay $600 of a $700 security deposit constituted good cause or a serious violation of the [L]ease.” Except for the amount of damages awarded, Tenant has not pointed this Court to any evidence in the record to support her contention that the termination of the Lease was in any way based on her failure to pay June rent. See Muse v. Muse, 2009-NMCA-003, ¶ 72, 145 N.M. 451, 200 P.3d 104 (“We will not search the record for facts, arguments, and rulings in order to support generalized arguments.”).{23} Tenant has not challenged the district court’s findings with any specificity, and we see nothing to indicate that the metropoli-tan court erroneously considered Tenant’s failure to timely pay the June rent when it terminated the Lease. See Martinez v. Sw. Landfills, Inc., 115 N.M. 181, 186, 848 P.2d 1108, 1113 (Ct. App. 1993) (“[A]n appellant is bound by the findings of fact made below unless the appellant properly attacks the findings, and . . . the appellant remains bound if he or she fails to properly set forth all the evidence bearing upon the findings.”). Therefore, our obligation is to assume no error occurred. See Farmers, Inc. v. Dal Mach. & Fabricating, Inc., 111 N.M. 6, 8, 800 P.2d 1063, 1065 (1990) (presuming that the lower court is correct where appellant fails to clearly demonstrate error). As a result, we limit our review to the issue of whether it was error for the metropolitan court to conclude that Ten-ant’s late payments of the security deposit and her monthly rent for July and August constituted a serious violation of the Lease that justified termination of the Lease.


Serious Violation of a Lease{24} Under the Section 8 housing program, a serious lease violation is defined as includ-ing, but not limited to, a failure to pay rent or other amounts due under the lease or a repeated violation of the terms and condi-tions of the lease. 24 C.F.R. 982.310(a)(1). It is not clear to this Court that a late payment or a partial payment is a “failure to pay” within the meaning of the HUD regu-lation. The parties have not offered any legal authority on this point. See In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984) (explaining that where a party cites no authority to support an argument, we may assume no such authority exists). We further recognize that a mere failure to timely pay lease obligations may be cured by late tender. See City of Albuquerque v. Brooks, 114 N.M. 572, 574, 844 P.2d 822, 824 (1992) (recognizing that in cases involving public housing, it is an equitable defense and the court may apply equitable principles for the nonpayment of back rent to prevent eviction of a qualified indigent tenant).{25} In this case, although Tenant’s pay-ments may not have been timely, she had fully paid all of her obligations under the Lease by October 2009. We find no evi-dence in the record to support a finding that Tenant’s failure to timely pay rent on the first of the month was based on anything other than the date she received her public assistance checks. HUD has explicitly stated that it did not intend to allow a private land-lord to terminate a tenancy for untimely rent payments where it is evident to the landlord that the tenant was unable to timely pay until the tenant received public assistance after the rent due date. See Am. Nat’l Bank & Trust Co. v. Dominick, 507 N.E.2d 512, 513-15 (Ill. App. Ct. 1987) (identifying the longstanding HUD interpretation of its lease terminology and its policy that material noncompliance and termination of a tenancy cannot be based upon untimely rental payments where it is evident to the landlord that tenant could only pay his portion of the rent when he received his public assistance funds after the rent due date). As such, we conclude that Tenant’s late payment of rent in this case would not constitute a “failure to pay rent” or a “serious lease violation” within the meaning and interpretation of the HUD regulations. See TBCH, Inc. v. City of Albuquerque, 117 N.M. 569, 572, 874 P.2d 30, 33 (Ct. App. 1994) (giving “persuasive weight to long-standing administrative constructions of statutes by the agency charged with admin-istering them”). We conclude that Tenant’s late rental payments for the month of July

and August do not constitute a serious violation of the terms and conditions of the Lease.{26} With regard to the security deposit, New Mexico permits a landlord to demand from the resident “a reasonable deposit to be applied by the owner to recover damages, if any, caused to the premises by the resident during his term of residency.” NMSA 1978, § 47-8-18(A) (1989). However, a landlord is not entitled to withhold any portion of the deposit until after the tenancy is termi-nated. See § 47-8-18(D). Under the terms of the Lease, no date was identified regarding when Tenant would pay the security deposit, whether partial payments could be made and, by its express terms, the amount of the security deposit was not allowed to exceed one month’s rent. The stated security deposit amount of $700, however, did exceed the monthly rental amount of $538. As a result, it is not clear from the record whether Tenant’s delay in the payment of the full security deposit until October constituted a violation of the Lease but, even if it did, nothing in the record indicates that the timing of Tenant’s payment of the security deposit had any significant or material adverse effect on the Landlord’s property or economic benefits when they filed a petition to terminate the Lease on August 13, 2009. See Wilhite v. Scott Cnty. Hous. & Redevelop-ment Auth., 759 N.W.2d 252, 256 (Minn. Ct. App. 2009) (explaining that minor lease violations do not significantly affect a landlord’s property or economic interest, whereas serious violations deprive a landlord of either a tangible property interest or a real and significant economic benefit). As such, the ambiguous language of the Lease and the lack of any evidence identifying a significant or materially adverse effect on Landlord cannot establish a serious violation based upon Tenant’s three-month delay in paying the balance of the security deposit in October 2009.{27} The public policy behind the Section 8 housing program is structured to assist financially disadvantaged members of our society. See Green Valley Mobile Home Park v. Mulvaney, 1996-NMSC-037, ¶ 13, 121 N.M. 817, 918 P.2d 1317 (“[I]n . . . Brooks . . . , we held that a federal regula-tion imposing a ‘good cause’ termination requirement was intended to afford special protection to low-income tenants of subsi-dized housing.”); see also Wollmer v. City of Berkeley, 122 Cal. Rptr. 3d 781, 791 (Ct. App. 2011) (classifying indigent persons eligible to receive benefits under the Section 8 housing program as “the most vulnerable population”). It is apparent that the most

vulnerable members of our community war-rant protection from eviction by imposing a slightly higher standard on their landlords. In return, landlords also benefit when they accept a tenant under the Section 8 housing program because the government guarantees payment for a significant portion of the monthly rent. These protections create a logical societal balance by providing land-lords with reasonable economic security and the community’s most vulnerable citizens with opportunities for decent housing that they otherwise would be unable to obtain. Such a public policy would apply to the benefit of Tenant under the facts of this case.Good Cause{28} We briefly address whether it was legal error for the metropolitan court to conclude that the termination of the Lease was war-ranted based on the existence of “other good cause.” Although HUD regulations permit a landlord to terminate for other good cause based upon something the ten-ant did or failed to do, the express terms of the Lease do not allow any termination for other good cause during the first one-year term of the Lease. 24 C.F.R. § 982.310(d)(2). The record also supports the contention that Landlord wanted Tenant to pay a higher rental amount for the property—$875 per month rather than $538 per month. Congress has also explicitly stated that a landlord’s desire to lease the unit at a higher rental rate cannot be considered as a justifi-cation for “other good cause” during the first year of a Section 8 housing program lease. 24 C.F.R. § 982.310(d)(2). Even if Land-lord were permitted to use the low rental amount as a good cause basis for terminat-ing the Lease, it could not do so until after the completion of the first one-year term of the Lease. Because the parties were only in the first few months of the first term of the Lease, it was error to allow Landlord to attempt to terminate the Lease on the basis of “other good cause.” As a result, Landlord could only terminate on the basis of a serious violation of the terms and conditions of the Lease, and we have addressed that issue in Tenant’s favor. We reverse the judgment of the district court regarding Landlord’s claim that he was entitled to terminate the Lease and be awarded restitution of the premises.Tenant’s Retaliation Counterclaim {29} Tenant also appeals the metropolitan court’s denial of her counterclaim, argu-ing that it was supported by substantial evidence. The record reflects that the met-ropolitan court denied Tenant’s counter-claim because it did not find that Tenant’s testimony on the matter was credible. This Court will not re-weigh the evidence or


substitute our judgment for the trier of fact on appeal. Landavazo v. Sanchez, 111 N.M. 137, 138, 802 P.2d 1283, 1284 (1990); Dibble v. Garcia, 98 N.M. 21, 23, 644 P.2d 535, 537 (Ct. App. 1982). Tenant has failed to provide record citations to support her assertion that the Landlord’s conduct was an improper retaliation. Consistent with our rules of appellate procedure, we will not address the merits of Plaintiff’s sufficiency of the evidence argument any further. See Rule 12-213(A)(3) NMRA; see also Aspen Landscaping, Inc. v. Longford Homes of N.M., Inc., 2004-NMCA-063, ¶¶ 28-29, 135 N.M. 607, 92 P.3d 53 (explaining that a party challenging a finding for lack of substantial evidence must refer to “all of the evidence, both favorable and unfavor-able, followed by an explanation of why the unfavorable evidence does not amount to substantial evidence, such as is necessary

to inform both the appellee and the Court of the true nature of the appellant’s argu-ments”). As a result, we conclude that the district court did not err in concluding that the metropolitan court’s findings and con-clusions regarding Tenant’s counterclaim were supported by substantial evidence. See Rule 12-213(A)(4); Nance v. Dabau, 78 N.M. 250, 252, 430 P.2d 747, 749 (1967) (“Findings must be attacked on the basis that there is no substantial evidence to sup-port them. If not so attacked, the findings must be accepted as the facts in the case.” (citation omitted)).Attorney Fees{30} Because we have reversed the metro-politan court’s judgment terminating the Lease, it is improper to award the Landlord attorney fees as the prevailing party. We remand this matter to the metropolitan court for a redetermination of attorney fees,

if any, on behalf of the prevailing party in this eviction proceeding.CONCLUSION{31} We reverse the portion of the district court’s opinion and order that affirmed the metropolitan court’s termination of the Lease and its award of Landlord’s attorney fees. We affirm the portion of the opinion and order that affirmed the metropolitan court’s judgment denying Tenant’s retalia-tion counterclaim. We remand this matter to the metropolitan court for further pro-ceedings consistent with this Opinion.{32} IT IS SO ORDERED. TIMOTHY L. GARCIA,

JudgeWE CONCUR:CELIA FOY CASTILLO, Chief JudgeLINDA M. VANZI, Judge


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MCLE 2012 Annual Compliance Reports

The 2012 Annual Compliance Reports have been mailed to all active licensed New Mexico attorneys. The reports include all information for courses taken by 12/31/12.

All non-compliant attorneys have been assessed a late compliance fee, and the invoice for payment of the fee is included with the Annual Report. Non-compliant attorneys must complete their requirements immediately. On April 1, 2013 a second late compliance fee will be assessed for those attorneys who continue to be in non-compliance.

On May 1, 2013 the MCLE office will submit to the Supreme Court a list of all attorneys who have not completed their 2012 requirements and/or failed to pay assessed late compliance fees. The Supreme Court will then begin to initiate the suspension process for those attorneys on the list. For more information, call MCLE at (505) 821-1980; e-mail [email protected], or write to MCLE, PO Box 93070, Albuquerque, NM 87199.

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poSitionS

claSSified

Legal Secretaries / ParalegalsHigh Desert Staffing seeks candidates with 2-5+ years experience for both permanent and tempo-rary positions. Call for interview: (505) 881-3449

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

Assistant Attorney GeneralThe NM Attorney General’s Office, an EEO employer, is seeking applicants for an “exempt” (not classified), Assistant Attorney General Po-sition within its Consumer Protection Division in Santa Fe. The Office is seeking an attorney with a minimum of 3-5 years of experience. Applicants should possess knowledge of fed-eral and state civil law, consumer law, and/or commercial law. Experience in civil litigation preferred. Looking for a self-starter and team player who views a public sector law practice as an opportunity to make a positive contribu-tion to the people of the State of New Mexico. The job requires excellent research, writing, negotiations and communication skills. NM bar admission is required. A Resume, writing sample and a minimum of three professional references should be sent to the Office of the Attorney General. Attn: Roberta Lujan, HR Administrator, PO Drawer 1508, Santa Fe, NM 87504-1508, this position will remain open until filled

Assistant General CounselNEW MEXICO DEPARTMENT OF FI-NANCE AND ADMINISTRATION (DFA) – ASSISTANT GENERAL COUNSEL. This Lawyer-A position is full-time, permanent, and classified. The salary range is from $20.70 per hour (or $43,056 annually) to $36.80 per hour (or $76,544 annually), depending upon experience and qualifications. The ideal can-didates for this position are those with strong analytical, research, communication, and interpersonal skills, who enjoy working hard as a member of a small, collaborative, dynamic legal team on topical issues that directly impact all levels of state and local government. The diverse subject matters in which the successful candidate will likely practice include employ-ment law, procurement, contracts, state and local government finance, budgeting, and administration, state constitutional law, and rulemaking. Applicants must: (i) have a J.D. from an ABA accredited law school; (ii) be an active member, in good standing, of the NM bar; and (iii) have three or more years of experience as a practicing attorney, with a minimum of 1 year experience in governmental law (or sufficient additional non-governmental experience). Experience in employment law, procurement, and/or government contracts is preferred. Applicants must apply at www.state.nm.us/spo on or before April 5, 2013, to be considered for this position.

Associate AttorneySilva & Gonzales, P.C., an AV rated litiga-tion firm, seeks an attorney with two to six years experience, interested in working in a congenial atmosphere on complex commer-cial, employment, personal injury, and white collar matters. Strong academic credentials and excellent research and legal writing skills required. All inquiries confidential. Excellent salary and benefits. Please mail resume and writing sample to Tamara C. Silva at PO Box 100, Albuquerque, NM 87103-0100 or email [email protected]. Position available immediately.

AssociateDowntown civil defense firm seeking associate with minimum five years experience in civil litigation or a judicial clerkship. Applicant must have strong research and writing skills. Court room and trial experience preferred. Competi-tive salary and benefits. Inquiries will be kept confidential. Please forward letter of interest and resume to Robles, Rael & Anaya, P.C. 500 Marquette NW. Suite 700 Albuquerque, NM 87102 or email to [email protected].

Lawyer AdvancedEnergy, Minerals and Natural Resources DepartmentThe Energy, Minerals and Natural Resources Department seeks an experienced attorney to represent the Oil Conservation Division. The individual selected for this position will repre-sent the Oil Conservation Division in judicial and administrative proceedings; advise senior management including the Oil Conservation Division Director and Cabinet Secretary; partici-pate in developing policies and rules; represent the Oil Conservation Division and work with Oil Conservation Division staff in compliance and enforcement matters; prepare legal docu-ments for regulatory and compliance matters; draft and review contracts; and support the Oil Conservation Division in the development and review of proposed legislation. A Juris Doctorate is required for this position. A minimum of five years of experience in oil and gas, environmen-tal, natural resources, or administrative law is required for this position. Must possess and maintain a current license to practice law as a lawyer issued by the Supreme Court of New Mexico. Most possess and maintain a valid New Mexico Driver's License. Must provide a writing sample. To apply for this job, applicants must go to www.spo.state.nm.us and select the Employ-ment tab to apply for the appropriate position. Make sure to complete the entire process, includ-ing certification of experience, completion of questionnaire, and attachment of transcripts and writing sample. Agency contact for this position is Cheryl Bada (505) 476-3214.


Experienced Santa Fe Paralegal - Very Competitive Package! Santa Fe Firm has an immediate opening for an EXPERIENCED SANTA FE PARALEGAL conscientious, hardworking, multi-tasking, ma-ture, meticulous, professional and experienced Paralegal to join our team. You MUST have previ-ous SANTA FE law firm experience to be consid-ered. The position requires excellent attention to detail, accuracy in your work, typing at 80+ wpm, excellent written and oral communication skills, and the ability to organize and prioritize. Look-ing for a self-starter who has the ability to work independently and as part of a TEAM. Our firm is computer intensive, informal, non-smoking and a fun place to work. Comp $50K to $60K+ per year. Annual salary, monthly bonus, 100% paid medical/hosp, paid parking, paid holidays + sick and personal leave, and other benefits. All responses will be kept strictly confidential. Please send us your resume and over letter including salary history in either MS Word or PDF format to [email protected]

Legal Secretary/AssistantWell established civil litigation firm seeking Legal Secretary/Assistant with minimum 3- 5 years’ experience, including knowledge of local court rules and filing procedures. Excellent clerical, organizational, computer & word processing skills required. Fast-paced, friendly environment. Benefits. If you are highly skilled, pay attention to detail & enjoy working with a team, email resume to: [email protected]

ParalegalLitigation paralegal with background in document control/management, trial experi-ence, and familiar with use of computerized databases. This is an opportunity for a highly motivated, task & detail-oriented profes-sional to work for an established, well-respected downtown law firm. Competitive benefits. Email resume to: [email protected]

ParalegalMinimum of two years legal experience, very organized, good communicator, heavy multi-tasking, a team player, detail oriented. Send confidential resume, including references, salary requirement - fax to 254-4722, mail to PO Box 3509, Alb 87190, or email to [email protected]

Two Openings:Legal Assistant and Legal SecretaryLegal Assistant and a Legal Secretary needed for 2 separate openings, in reputable once again growing law firm representing numerous large, nationwide clients. Must be able to multi-task in a high volume, fast paced environment. Ex-cellent benefits & salary. Submit in confidence: cover letter, resume, salary history & req to [email protected]

Las Cruces Paralegal Miller Stratvert PA is looking for candidates with 2-5 years of civil litigation experience for the Las Cruces office. Familiarity with New Mexico law a plus. Excellent writing and proof-reading skills, legal terminology proficiency, organizational skills, and MS Word/Outlook/Adobe Acrobat proficiency required. ProLaw experience preferred. Self-motivation and the ability to work with minimal supervision in a busy, fast-paced environment is a must. Com-petitive salary, excellent benefits and positive work environment. E-mail resume to Firm Administrator, [email protected].

Legal Secretary/Legal Assistant A small, downtown Santa Fe Law Firm is seek-ing a Legal Secretary/Legal Assistant. Duties include answering phones, processing daily mail, data entry, typing transcription and cor-respondence; and filing in New Mexico courts. Applicant should have knowledge of federal and state court rules and calendaring court deadlines and appointments and familiarity with Word, Outlook, and Adobe Acrobat. Salary to be determined based upon experi-ence. Health, dental and 401(k) plan available. Please send resume to Kerrie Allen, at [email protected].

Litigation Paralegal – Santa Fe, NMThe Rodey Law Firm is accepting resumes for a litigation paralegal position to assist attorneys in its Santa Fe Office. Must have a minimum of five years hands-on litigation experience. Appli-cants must possess the ability to manage a case from the beginning through trial, including document production/analysis/organization/maintenance; discovery; all phases of case man-agement; trial preparation and participation. Heavy client contact, interaction with experts. Requires flexibility and ability to manage mul-tiple deadlines. Needs to be a self starter, willing to take initiative and work as a member of case team. Firm offers congenial work environment, competitive compensation and excellent benefit package. Please send resume to [email protected] or mail to Human Resources Manager, PO Box 1888, Albuquerque, NM 87103.

Legal SecretaryBusy insurance and civil defense firm seeks full-time legal secretary with five plus years’ experience in insurance defense and civil litiga-tion. Position requires a team player with strong word processing skill including proficiency with Word Perfect, knowledge of court systems and superior clerical and organizational skills. Should be skilled transcriptionist, attentive to detail and accurate with a Minimum typing speed of 75 wpm. Excellent work environment, salary and benefits. Send resume and references to Riley, Shane & Keller, P.A., Office Mgr, 3880 Osuna Rd., NE, Albuquerque, NM 87109 or e-mail to [email protected]

Legal AssistantGUEBERT BRUCKNER P.C. busy litigation firm looking for experienced Legal Assistant to work with various attorneys as Word Proces-sor/Proof Reader in an office pool, must enjoy working as a team member. Word Processor tasks include: processing letters, filing plead-ings, and other misc documents for 10 at-torneys. Must have strong writing and proof reading skills. Knowledge of Local, State, Federal Civil Rules helpful. Hours 8 to 5, start-ing Salary $13.00. Firm uses Microsoft Word, Excel, and Outlook. Please submit resume and salary requirement to Kathleen A. Guebert, POB 93880, Albuquerque, NM 87109.

Legal AssistantLaw firm seeks a legal assistant. Duties include administrative tasks related to legal cases. Must have high school diploma with three to five years of related experience working in a defense, civil litigation law firm or equivalent combination of education and/or experience related to the discipline. Associates degree or certificate related to legal administration work is preferred. Must be proficient in Microsoft Office, computerized data bases, related soft-ware and the ability to learn new, complex programs. Must have an understanding of legal documents and knowledge of court processes, including the ability to draft documents and follow them through the process. Seeking highly skilled, professional, thoughtful, orga-nized, and motivated individual with attention to detail who can work in a demanding role. If you believe you are qualified and have an interest, please send resume, cover letter and salary demands to [email protected]. Full Time Legal Assistant Position

Permanent full time legal assistant position with small, busy downtown Albuquerque firm. Must have excellent writing and language skills. Successful applicant will be responsible for calendaring, drafting pleadings, document/discovery prep and client contact. Friendly working environment with emphasis on teamwork. Experience helpful but not required as there will be training. Salary and benefit DOE. Send resume and cover letter to [email protected] or mail to P.O. Box 25205, Albuquerque, NM 87125-0205.

www.nmbar.org


MiScellaneouS

office Space

ServiceS

Reliable Virtual Bankruptcy AssistantNeed help preparing bankruptcy petitions? 18 years experience. Please call Anita L. Slusser at 505-486-1057 or email at [email protected].

Briefs, Research, Appeals--Leave the writing to me. Experienced, effec-tive, reasonable. [email protected] (505) 281 6797

620 Roma Building, 620 Roma N.W. Located within two blocks of the three down-town courts. Rent of $550.00 per month includes five conference room, receptionist, all utilities (except phones). Call 243-3751 for appointment to inspect.

Bookkeeping & AccountingDesert Accounting, LLCBob Hyde, BBA: Accounting505-771-1445www.desertaccounting.net“Do what you do well, and hire us to do what we do well”!

Does Your Office Need Help?AM hours only; Legal Asst avail for all business needs; Prof Appear; will travel; Exp’d Civil Lit;Big or small projects; short or long-term from prep of ltrs, organize business, to prep for trialInfo: [email protected]

Shared Office SpaceShare space with two small law firms at San Mateo & Constitution. Two offices available, 660 SF total. $500/mo. for one, $950/mo. for both. Services include janitorial, reception, and all utilities except phone and internet. Off street parking; shared areas include reception areas, break room, and two conference rooms. Call Shelly at 265-6491.

Expert RN Consultant38 years of experience; Advance degrees in Nursing and Business. Reasonable Rates. Please contact Shirley McGraw @ 505-263-3816

Will for Thomas EnglandRequest is made that any attorney who pre-pared a will for Thomas England of Las Cruces, New Mexico, to notify Michael L. Winchester, [email protected], Winchester Law Firm, PC, (575) 527-1660, 333 South Campo Street, Las Cruces, New Mexico 88001

Legal Research/BriefsRecently retired attorney 25 yr. experience in N.M. solo general civil practice - $40 hr. [email protected]

Advocacy in Research and WritingRebecca Sitterly505-238-5151 * [email protected]"A former trial lawyer, experienced jurist, and respected scholar – when you have a complicated legal question and no room for error, Rebecca is your woman. No issue will be overlooked, no time will be wasted on tan-gents." —Allegra Carpenter, Esq.

Office Space AvailableOffice space available near downtown, located at 1905 Lomas Blvd. NW, or intersection of 19th & Lomas. Share space with other experi-enced practitioners. Two offices available, one average sized office and one smaller sized office. Conference room, file room, and landscaped outdoor patio area included. Copier, scanner, fax services provided with client codes. $500 per month for average sized office, $800 per month for both offices. Call Joe Romero at (505) 239 - 8985.

All advertising must be submitted via e-mail by 4:00 p.m. Wednesday, two weeks prior to publication (Bulletin publishes every Wednesday). Advertising will be accepted for publication in the Bar Bulletin in accordance with standards and ad rates set by the publisher and subject to the availability of space. No guarantees can be given as to advertising publication dates or placement although every effort will be made to comply with publication request. The publisher reserves the right to review and edit ads, to request that an ad be revised prior to publication or to reject any ad. Cancellations must be received by 10 a.m. on Thursday, 13 days prior to publication.

For more advertising information, contact: Marcia C. Ulibarri at 505-797-6058

or Email [email protected]

SUBMISSION DEADLINES

Paralegal Seeking Contract WorkMature, reliable, personable paralegal seeking contract work in Santa Fe and Albuquerque. Especially proficient in writing & editing. John McAndrew at [email protected]. 505-466-4487.

poSitionS Wanted

www.nmbar.org


years75

www.montand.com

325 Paseo de PeraltaSanta Fe, New Mexico 87501

(505) 982-3873

6301 Indian School Road NE, Suite 400Albuquerque, New Mexico 87110

(505) 884-4200

Joining Forces

Montgomery & Andrews is pleased to announce that the firm will join forces with Bannerman & Johnson, forming one of the largest firms in the state.

For more than 30 years, Bannerman & Johnson attorneys have served the health care, business, real estate, insurance, and professional communities in New Mexico and beyond.

Montgomery & Andrews, celebrating 75 years of service to its local, regional, and national clients, is known for the breadth of its legal and regulatory experience and its familiarity with the personnel and processes of New Mexico’s executive and legislative branches of government.

In April, Bannerman & Johnson’s seven attorneys will relocate to Montgomery & Andrews’ Albuquerque offices, and the combined firms will continue to practice as Montgomery & Andrews, P.A.

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Documents

March 20, 2013 • Volume 52, No. 12 · Bar Bulletin - March 20, 2013 - Volume 52, No. 12. 1 . Window Series–Taos, by Helen Gwinn (see page 3) Weems Art Gallery, Albuquerque. Inside