april 17, 2013 • volume 52, no. 16 - state bar of new mexico · - april 17, 2013 - volume 52, no....

Bar Bulletin - April 17, 2013 - Volume 52, No. 16 1

March 30, 2008 by Matthew Lutz (see page 3) Matrix Fine Art, Albuquerque

Inside This Issue

April 17, 2013 • Volume 52, No. 16

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

Ninth Judicial District Court Judicial Vacancy ..............................................4

State Bar 2013 Annual Awards: Call for Nominations ......................................7

Young Lawyers Division Interview Series A Talk With Roberta Cooper Ramo, by Rebekah Wright .........................................8

2013 Justice for All Silent Auction .....................10

Clerk’s Certificates .............................................15

Recent Rule-Making Activity .............................17

From the New Mexico Court of Appeals

2013-NMCA-038, No. 31,141: State v. Huettl ...............................................19

2013-NMCA-039, No. 30,786: Yurcic v. City of Gallup .................................29

2013-NMCA-040, No. 30,748: N.M. Board of Dental Health Care v. Jaime ..........................................................35

2013-NMCA-041, No. 31,496: Zuni Indian Tribe v. McKinley County Board of County Commissioners ..................38

2013-NMCA-042, No. 30,920: Garcia v. Sonoma Ranch East II, LLC ..........42

2 Bar Bulletin - April 17, 2013 - Volume 52, No. 16

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Notices ................................................................................................................................................................4State Bar 2013 Annual Awards: Call for Nominations .........................................................................7Young Lawyers Division Interview Series A Talk With Roberta Cooper Ramo, by Rebekah Wright ..............................................................82013 Justice for All Silent Auction ........................................................................................................... 10Legal Education Calendar .......................................................................................................................... 11Writs of Certiorari ......................................................................................................................................... 12List of Court of Appeals’ Opinions ........................................................................................................... 14Clerk’s Certificates ......................................................................................................................................... 15Recent Rule-Making Activity ..................................................................................................................... 17Opinions

From the New Mexico Court of Appeals 2013-NMCA-038, No. 31,141: State v. Huettl.............................................................................. 19

2013-NMCA-039, No. 30,786: Yurcic v. City of Gallup ............................................................. 29

2013-NMCA-040, No. 30,748: N.M. Board of Dental Health Care v. Jaime ....................... 35

2013-NMCA-041, No. 31,496: Zuni Indian Tribe v. McKinley County Board of County Commissioners ................................................................................................... 38

2013-NMCA-042, No. 30,920: Garcia v. Sonoma Ranch East II, LLC .................................... 42

Advertising ..................................................................................................................................................... 47

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

April 17, 2013, Vol. 52, No. 16

Cover Artist: Matthew Lutz is an artist and educator in Rio Rancho. His series of floral oil paintings conveys the impact that one’s life, no matter how temporary or fragile, can make on others. Each bloom is unique and intricate, yet frail and impermanent. The title of each piece is the birth or death date of an individual whose beautiful existence is represented by the work (www.matthewlutz.com).

State Bar WorkShopS

april

17Lawyer Referral for the Elderly Workshop9:30–10:45 a.m., Presentation12:30–4 p.m., ClinicsSan Jose Senior Center, Carlsbad

18Lawyer Referral for the Elderly Workshop9:30–10:45 a.m., Presentation12:30–3 p.m., ClinicsRoswell JOY Senior Center, Roswell

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

May

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

1 Estate Planning/Probate Workshop 6–8 p.m., Mary Esther Gonzales Senior Center, Santa Fe

MeetingS

april

17 Law Practice Management Committee, Noon, State Bar Center

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

19 Trial Practice Section BOD, Noon, State Bar Center

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

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

26 Immigration Law Section BOD, Noon, via teleconference

27 Young Lawyers Division BOD, 10 a.m., State Bar Center

30 Appellate Practice Section BOD, Noon, via teleconference

taBle of ContentS

mailto:[email protected]







http://www.matthewlutz.com


notiCeS

With respect to the courts and other tribunals:

I will be respectful toward and candid with the court.

profeSSionaliSM tipCourt neWSSecond Judicial District CourtPro Bono Committee Reception The Second Judicial District Court Pro Bono Committee invites the legal commu-nity to a volunteer appreciation reception from 5 to 7 p.m., April 25, at the State Bar Center. The reception is in appreciation of the attorneys, staff, and volunteers who have supported pro bono efforts during the past year. Light refreshments will be served. R.S.V.P. by April 23 to Erin Olson, [email protected] or 505-797-6077.

Ninth Judicial District CourtJudicial Vacancy A vacancy on the 9th Judicial District Court will exist in Curry and Roosevelt counties as of July 1 upon the retirement of Judge Teddy L. Hartley. The judicial vacancy is for Division 3, General Jurisdic-tion, with a heavy criminal docket. Further inquiries regarding the details or assignment of this judicial 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 Appellate Court Judicial Nominating Committee, solicits applications for this position from lawyers who meet the statutory qualifications in Article VI, Section 14, of the New Mexico Constitution. Applications, as well as in-formation related to qualifications for the position, may be obtained from the Judicial Selection website at http://lawschool.unm.edu/judsel/application.php, or via email by calling Raylene Weis, 505-277-4700. The deadline for applications is 5 p.m., May 22. 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., May 31, at the Curry County Courthouse, 700 N. Main Street, Clovis, to evaluate the applicants for this position. The meeting is open to the public and those who want to speak will have an opportunity to be heard.

Bernalillo County Metropolitan CourtMass Reassignment of Cases As a result of the recent appointment of Judge R. John Duran, Division VIII, and pursuant to Rule 23-109 NMRA, all criminal cases previously assigned to Division VIII will now be assigned to Judge Duran effective April 12. Parties who have not yet exercised a peremptory excusal in those cases, pursuant to Rule 7-106 of the Metropolitan Court Rules of Criminal

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: Criminal: CR-1987-128, CR-1987-129, 1972–1997 April 10 Eddy County CR-1987-151, CR-1987-214, CR-1988-75, CR-1988-87, June 10575-885-4740 CR-1988-235, CR-1989-78, CR-1989-85, CR-1989-93,

CR-1995-104, CR-1997-63, CR-1998-33, CR-2000-65, CR-2002-53, CR2004-104, CR-2004-314, CR-2005-81, CR-2006-260, CR-2007-223, CR-2007-271, CR-2008-44, CR-2008-193, CR-2008-221, CR-2008-261, CR-2009-79, CR-2009-125, CR-2009-127, CR-2009-150, CR-2009-238, CR-2010-114, CR-2010-204. Civil: CV-1985-410, CV-1988-74, CV-1994-323, CV-1999-257, CV-2004-420, CV-2004-557, CV-2007-749. DM-1993-597. JR-2001-142, JR-2004-69, JR-2006-108.

10th Judicial District Court Exhibits in Criminal Relations Cases 1995–2009 June 28Quay County Exhibits in Criminal Appeal Relations Cases 2003–2005 June 28575-461-2764 Exhibits in Juvenile Relations Cases 1987–2010 June 28 Exhibits in Abuse/Neglect Cases 1996–2004 June 28

Exhibits in Adoption Relations Cases 1983–2007 June 28 Exhibits in Guardianship and Conservatorship Relations Cases 1991–1998 June 28 Exhibits in Incompetency, Mental Health and Competency Relations Cases 1991–1999 June 28 Exhibits in Civil Relations Cases 1994–2010 June 28

http://lawschool.unm


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Procedure, will have 10 business days from April 12 to file an excusal of Judge Duran.

U.S. District Court for the District of New MexicoService on the Bench and Bar Fund Committee Chief Judge M. Christina Armijo and the Article III district judges for the District of New Mexico solicit interest from members of the Federal Bar Association to serve on the Bench and Bar Fund Committee, which is responsible for the administration of, and the approval of disbursements from, the Bench and Bar Fund. To be considered for appointment, interested members in good standing should reply no later than April 19 to Clerk of Court, U.S. District Court, Pete V. Domenici U.S. Courthouse, 333 Lomas Blvd. NW, Suite 270, Albuquerque, NM 87102; or email [email protected].

State Bar neWSAttorney Support Group• May 6, 5:30 p.m.

Afternoon groups meet on the first Monday of the month.

• May 20, 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 May 9, 5:30 p.m.

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

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. The next meeting will be held at noon, May 8, 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 DivisionCelebrate Law DayAsk-a-Lawyer Call-in Program9 a.m.–1 p.m., May 4 Celebrate Law Day by participating in the annual Ask-a-Lawyer Call-in Program. To volunteer, contact a YLD member near you: in Albuquerque, Spencer Edelman, [email protected] or 505-848-1857; in Farmington, Mary Modrich Alvarado, [email protected] or 928-871-6212; or Ken Stalter, [email protected] or 505-599-9810; in Las Cruces, David Lutz, [email protected] or 575-526-2449; in Roswell, Jared Kallunki, [email protected] or 575-208-4469. The YLD invites all State Bar members to participate. Board Vacancy A vacancy exists on the YLD Board in Region 4 (3rd, 6th, and 12th Judicial districts and Sierra County). Any YLD members interested in the position should send a letter of interest and résumé to Chair Keya Koul, [email protected] by April 19.

unMEnvironmental Law SocietyQuiz for a Cause Join the Environmental Law Society for a night of fun at Quiz for a Cause to be held at 8 p.m., April 21, at O’Neill’s Irish Pub, 4310 Central Ave. SE, Albuquerque. The event will support the Society’s Sum-mer Fellowship. The cost is $5 per player, and winners will receive a cash prize. For more information, contact Michelle Miano, [email protected] 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

Natural Resources JournalProposals for Academic Articles The Natural Resources Journal is seeking proposals for academic articles on the law and policy issues surrounding hydraulic fracturing in oil and natural gas develop-ment. The theme for the Spring 2014 issue

will be Best Practices in the Regulation of Hydraulic Fracturing. Articles should ad-dress what are (or should be) best practices for the regulation of hydraulic fracturing. First published in 1961, the Natural Resourc-es Journal is an international, interdisciplin-ary journal devoted to the study of law and policy issues surrounding natural resources, and is produced by the University of New Mexico School of Law. For information about the NRJ or to see samples of authors’ works, go to http://lawschool.unm.edu/nrj. Email abstracts to [email protected] by June 1.

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Tribal Law Journal The Tribal Law Journal is an online forum hosted through the UNM School of Law. One of the few international legal journals dedicated to indigenous and tribal law, the Journal was established in 1998 and is devoted to promoting indigenous self-determination by facilitating discussion of the internal law of the world’s indigenous nations. Volume 11 (http://tlj.unm.edu/volumes/current.php) includes new media content featuring the Journal’s Community Symposium on “Cultivating Native Intel-lect and Philosophy” and Dr. Allan Ardill’s article on colonial control over the identity of Australian Aboriginal people, “Australian Aboriginality and Sociobiology.” Dr. Ardill lectures at Griffith Law School, Brisbane, Australia. The website, www.tlj.unm.edu/, is updated with new articles, profiles, and other material on a rolling basis. Visit the website frequently to explore the new material.

other BarSAlbuquerque Bar AssociationLaw Day Luncheon In celebration of Law Day, the Albuquer-que Bar Association will host a luncheon program at 11:45 a.m., May 1, at Hotel Albuquerque, 800 Rio Grande Blvd. NW. The keynote speaker will be attorney Shan-non Minter, legal director of the National Center for Lesbian Rights. In recognition of young achievement in the legal arena, the program also includes introductions of the Gene E. Franchini High School Mock Trial State Champions and presentation of awards to winners of the State Bar Essay Contest. Law Day will provide an opportunity to explore the movement for civil and human

rights in America and the impact it has had in promoting the ideal of equality under the law. This is a prepaid event. Registration and payment must be made prior to the event. Individual plate, $40; table of 10, $400; sponsorship, $500; sponsorship and table of 10, $740. For further information regard-ing sponsorship, email Terah Beckmann, [email protected]. Register for lunch by noon, April 22. To register:

1. log on to www.abqbar.org; or2. email [email protected]; or3. call 505-842-1151 or

505-243-2615; or4. mail to PO Box 40,

Albuquerque, NM 87103.

other neWSChristian Legal Aid Refresher Training Seminar Christian Legal Aid of New Mexico invites new members to join in working together to secure justice for the poor and uphold the cause of the needy. A refresher training seminar will be offered from noon to 5 p.m., April 19, at the State Bar Center. Enjoy a free lunch and participate in training to update skills on how to provide legal aid. For more information or to register, contact Jen Meisner, [email protected] or 505-610-8800.

New Mexico 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 provided by nursing facilities, home and community based care, as well as hospital and prescription drug services. HMS, on behalf of the HSD, will assert claims against the estates of recipients for the amount of medical assistance pro-vided. This debt is recovered from the assets of the decedent subject to probate. HMS will coordinate with personal representatives, executors, and attorneys, and will provide HSD’s claim amount and other necessary information. Upon the distribution of probate assets, HMS will coordinate the recovery. Direct questions to New Mexico Estate Recovery, PO Box 167767, Irving, TX 75016-7767; call 855-212-0144; fax 855-285-3995; or email [email protected]. Be prepared to provide the decedent’s Medicaid ID, date of birth, and date of death.

New Mexico Legal Aid‘One Day on Earth’ The first film shot in every country of the world, “One Day on Earth,” showcases the amazing diversity, conflict, tragedy, and triumph that occurs in one day on our planet. Support New Mexico Legal Aid by attending a special screening at 6:30 p.m., April 23, at Century 14 Downtown, Albuquerque. The cost is $12. Visit http://www.tugg.com/go/9ooafa to purchase tickets.Earth Day Cell Phones Recycling Drive New Mexico Legal Aid is kicking off its first community-wide campaign on April 23 to collect used and unwanted cell phones in connection with Earth Day 2013. All donated phones are confidentially and securely cleared of personal information and only need contain the phone and battery. Proceeds will support NMLA’s victims of violence programs. Bring used cell phones to the movie event for collection.

Senior Citizens’ Law OfficeMonthly Seminar Speaker Series In celebration of its 30th anniversary, Senior Citizens’ Law Office is sponsoring a monthly seminar speaker series on legal is-sues relevant to the elderly. Kathy Brandt will present “Divorce” from 6–7:30 p.m., May 1, at the Albuquerque Mennonite Church, 1300 Girard Blvd. NE, Albuquerque. Contact Guy E. Lescault, 505-265-2300 or [email protected].

Giving Back Changes Lives

Join the network today.Email [email protected].

TLC CaresThis Legal Community Cares

Emergency Assistance

to Legal Professionals in Crisis

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Nominations are being accepted for the 2013 State Bar of New Mexico Annual Awards to recognize those who have distinguished themselves or who have made exemplary contributions to the State Bar or legal profession in 2012 or

2013. The awards will be presented June 28 during the 2013 Annual Meeting–Bench and Bar Conference at the Santa Fe Community Convention Center, Santa Fe. All awards are limited to one recipient per year, whether living or deceased. Previous recipients for the last five years are listed below.

State Bar of New Mexico2013 Annual Awards

Call For Nominations

Justice Pamela B. minzner* Professionalism award

Recognizes one or more attorneys or judges who, over long and distinguished legal careers, have by their ethical and personal conduct ex-emplified for their fellow attorneys the epitome of professionalism.

Previous recipients: Henry A. Kelly, Hon. Angela J. Jewell, Raymond Hamilton, John P. Salazar, Thomas D. Haines Jr., Michael Schwartz

*Known for her fervent and unyielding commitment to professionalism, Justice Minzner (1943–2007) served on the New Mexico Supreme Court from 1994–2007.

seth d. montgomery* distinguished Judicial

service award

Recognizes judges who have distinguished themselves through long and exemplary ser-vice on the bench and who have significantly advanced the administration of justice; gener-ally given to judges who have or soon will be retiring.

Previous recipients: Hon. Patricio M. Serna, Hon. Jerald A. Valentine, Hon. James A. Hall, Hon. Mark B. McFeeley, Hon. A. Joseph Alarid, Hon. Lynn Pickard

*Justice Montgomery (1937–1998), a brilliant and widely respected attorney and jurist, served on the New Mexico Supreme Court from 1989–1994.

A letter of nomination for each nominee should be sent to Joe Conte, Executive Director, State Bar of New Mexico, PO Box 92860, Albuquerque, NM 87199-2860; fax 505-828-3765; or email [email protected].

Deadline for Nominations: April 30

roBert h. lafollette* Pro Bono award

Presented to an attorney who has made an exemplary contribution of time and effort, with-out compensation, to provide legal assistance to people who could not afford the assistance of an attorney.

Previous recipients: Jared G. Kallunki, Alan Wainwright, Ronald E. Holmes, Ben A. Longwill, Matthew T. Byers

*Robert LaFollette (1900–1977), director of Legal Aid to the Poor, was a champion of the underprivileged who, through countless volunteer hours and personal generosity and sacrifice, was the consummate humanitarian and philanthropist.

distinguished Bar service award–nonlawyer

Recognizes nonlawyers who have provided valuable service and contributions to the legal profession over a significant period of time.

Previous recipients: Sandra Bauman, David Smoak, Robin Gomez, Sally Saunders, Carolyn L. Cochran

outstanding young lawyer of the year award

Awarded to one or more attorneys who have, during the formative stages of their legal careers by their ethical and personal conduct, exempli-fied for their fellow attorneys the epitome of professionalism; nominee has demonstrated com-mitment to clients’ causes and to public service, enhancing the image of the legal profession in the

eyes of the public; nominee must have practiced no more than five years or must be no more than 36 years of age.

Previous recipients: Robert L. Lucero Jr., Keya Koul, Christina A. Vigil, Clara Moran, Vincent J. Ward, Marcus J. Rael Jr.

outstanding legal organization or Program award

Recognizes sections, committees, local and voluntary bars and outstanding or extraordinary law-related programs that serve the legal profes-sion and the public.

Previous recipient: United South Broadway Corp. Fair Lending Center; UNM School of Law Clinical Law Programs; CCV N.M. High School Mock Trial Program; N.M. Hispanic Bar Association; Albuquerque Bar Association Law Day Program; San Juan County Bar Association

distinguished Bar service award–lawyer

Recognizes attorneys who have provided valuable service and contributions to the legal profession over a significant period of time.

Previous recipients: John D. Robb Jr., Mary T. Torres, Dennis E. Jontz, Randy J. Knudson, Charles J. Vigil



Latest in a series of informal interviews conducted by members of the Young Lawyers Division

A Talk With. . .

Roberta Cooper RamoBy Rebekah Wright

Roberta Cooper Ramo is an attorney, civic leader, and speaker. She was the first female president of the American Bar As-sociation and was elected president of the American Law Institute in 2008. She is a shareholder with the Modrall Sperling law firm, practicing in the areas of arbitration, mediation, business law, estate planning, and real estate. Her distinguished career reflects a deep commitment to improving and supporting the American legal system, protecting civil rights, and working toward a better New Mexico.

How would you describe yourself as a girl? I was incredibly lucky to grow up in Albuquerque with the family that I had. Albuquerque is a miraculous place be-cause it is a city where you see all kinds of people. You learn at a very early age that you can’t tell anything about somebody by how he or she looks. I’m Jewish, and Albuquerque was a place where I went to everybody’s First Communions and they came to everybody’s Bar Mitzvahs and Bat Mitzvahs. It was not a melting pot—it was something more important than that. It was a place where people appreciated and celebrated the differences in their friends and wanted to know all about everybody. You felt enriched by the fact that you had friends who were not exactly like you in any way. I think that makes you a very powerful person. You quickly learn to look inside people and see that every single person has something to offer. I don’t think everybody gets that chance. Also, Albuquerque is a place where, if you could do something for the community, people wanted you to do it. The second thing that was important is that I grew up in a family of three daughters with a very smart mother. While she didn’t work [outside the home], she was a vocal partner in my dad’s business. I had a father who, although it was late in his life before he would have recognized this word, was a feminist. He was an amazing business-man and philanthropist. [Editor’s note: Martha and David Cooper owned Western Warehouse, with stores in Albuquerque, Santa Fe, and Farmington as well as Colorado, Arizona, and California. The family sold the business in 2005.] It just never occurred to him that there was anything his daughters couldn’t do, and he had a lot of things he thought we should do, mostly to excel in whatever we did. With that kind of background, you get a huge head start on life.

You were a law student during the civil rights movement. What was that like?I went to the University of Chicago Law School, an amazing place. It was for me the first great educational experience I had. I worked for the ACLU the summer between my second and third year in law school when Martin Luther King was organizing in Chicago. That was the first time I was in a courtroom.

How did that shape your view of the role of the attorney?Dr. King had brought up some young men from Atlanta to organize and register people to vote on the south side of Chicago. I walked into the ACLU office one day to find that five of his people had been arrested for loitering and a variety of other charges, and I was supposed to get them out of jail. It is an understatement to say that I had no idea what I was doing. It was then that I started to see how important being a lawyer was because we were watching lawyers do miracles every day in Chicago and all over the South and at the Supreme Court. The City of Chicago tried to get an injunction to stop civil rights marches, and I got to work with very accomplished lawyers to defeat that effort.

Your husband is Dr. Barry Ramo, a cardiologist. You have remarked on the importance of lawyers developing a “bedside manner” with clients. Was this inspired by your husband and his interaction with patients?Absolutely. I live with the model for wonderful bedside manner. My husband started his internship when I started law school. Doctors learn how to deal with human beings who are sick. They learn how to get the information they need, how to comfort them, and how to be realistic with them when things are not so good. Nobody teaches that in law school. It is very important that lawyers understand that when a client comes to them, no matter what the setting—whether you are in a federal office, whether you are the prosecutor or a plaintiff’s lawyer or a defense lawyer or a legal aid person— that client has a problem, the most important problem that anybody ever had. It takes a great deal of skill and intellect to ascertain the facts and to figure out what to do with the facts, but it also takes thoughtfulness to explain the realities of the situation in a meaningful way.

What stands out as your most meaningful work from your time as president of the American Bar Association?I spent two years, both the year I was president-elect and the year


I was president, working to keep funding from being done away with for the National Legal Services Corporation. The reason that all of the very different people in American society move forward peacefully isn’t because we don’t have differences. It’s because we have a legal system that accommodates everybody and a system that is generally perceived as just and fair. But if it is not accessible, then that promise means nothing and the democracy is really in peril because of that. I am personally very concerned now, both on the federal level and in our own state, that we are underfunding the courts, judges, and legal services. We can’t do that and have democracy work. Lawyers have a special obligation to get in touch with our legislators to ensure these functions are properly funded.

What do you see as the role of young lawyers in supporting legal aid services?Because of our education, we understand the American democracy and, as citizens, we should be the leaders. It is a priority the same way that education and food are a priority. It is the cornerstone that makes this community work. Secondly, if poor people have no access to justice, then that is not the democratic process at all. If you don’t see how the justice system and the economy and everything else works for people who are poor, you don’t really appreciate it. Finally, being involved in pro bono work will make you a better lawyer, whether you believe that it is your responsibility or not.

You represented Nancy Lopez, an accomplished Roswell amateur golfer facing barriers as a female athlete before Title IX was passed. What did it mean for you to represent Lopez and help her realize her dreams? Nancy was a gifted golfer and her parents, people of modest means, were supporting her remarkable amateur career. This was expensive and required travel all over the country. Nancy was already the na-tional junior champion, but her parents were seeking opportunities for her to compete, be coached, and to play golf at no cost to them by playing on her high school team. All of those experiences were available to boys. [The Lopezes] were referred to me by now-Justice Charles Daniels through the ACLU. It just seemed wrong to me that they, as taxpaying parents of this state, shouldn’t be allowed to have the same benefits for their child, who happened to be a girl. After we prevailed, New Mexico led the way in letting young girls compete when there were no athletic competitions for girls anywhere. I want to make sure that we don’t in any way begin to nibble around the edges of that right. It is too important.

You’ve had a tremendously successful career as a woman and mother. How you do feel the circumstances have changed for lawyers who want to be successful, have a family, and achieve some balance between the two? When we decided to have children, I made up my mind about what was comfortable for me. I worked part time until our daughter graduated from high school. I went around from firm to firm until I could find somebody who would let me work altered hours. Then I was in practice by myself for several years when I thought that was the only way to do it, but I had the important support of a wonderful feminist husband. I am also very proud of the Modrall firm because of its flexibility on family issues. Many parents would like to spend more time with their children, [but] as a profession and as a nation, we have not figured out exactly how to make it possible for most. It is important to stay in the profession and continue to grow and have experiences even if you are not working full time. I think it is much harder—it is not impossible, but it is much harder—for women who drop out completely and then try to come back 10 years later. You have to look at all the able women out there to know that we can’t afford to lose our brightest minds, but we also want our brightest minds to have children and raise them in the way that they feel comfortable. Although there should be more-than-comfortable

maternity and paternity leave and everyone has to [decide] for themselves and do what is comfortable for them, there is a social and an institutional need to figure out new supportive models so we don’t waste all that intellectual capital.

Tell me about the work being done at the American Law Institute.I am very proud of the American Law Institute. This is our 90th year. We were founded by the most prominent legal intellectuals of the time—judges, lawyers in practice, and scholars. The goal of the American Law Institute is to modernize the law and make it more accessible and useful to American society. I am very proud because I think we continue to achieve that goal with quality work. We’re currently involved in a number of important projects. Several Revised Restatements of Torts have come out recently. We are work-ing on Emotional Harm right now. The Restatement of Restitution is a fabulous, useful text. They don’t teach restitution as a course anymore, but every litigator ought to look at Restitution. We are just about to finish the Restatement of Employment Law. The ALI’s Principles of Aggregate Litigation, which is a fancy term for class actions, is becoming very important and cited often in the courts. We have a new project in Indian law, and we are doing an election law project. Finally, we are redoing the Model Penal Code in several areas, including a new effort to rework the portion of the MPC dealing with sexual assault, which is just completely out of date.

Roberta, you have six honorary degrees, are serving on multiple boards, and have held countless leadership roles. You have been involved and influential in the legal profession and in the larger community in so many ways. What do you hope to inspire in others, particularly those early in their legal careers?I never think that I can inspire others, but if you are lucky enough to be alive and healthy, then it is a waste if you don’t take advantage of everything that is in front of you and try to make things better for your family and your community. The people who are real in-spirations to me, in addition to my husband, are my children. Our daughter Jenny is a lawyer and director of New Mexico Appleseed. She is working to eliminate the causes of poverty in New Mexico, starting with seeing that thousands of hungry New Mexico children get breakfast at school. Our son Joshua is an author and expert on China. His thinking, advice, and writings about coping with our rapidly changing global environment are deeply important. We are very lucky because New Mexico is still a small legal community. We still know each other to some extent. We are not in a good place in terms of economic development as a state right now for a lot of complicated reasons, but it is not because we don’t have great people, a great culture, and great possibilities. I am very grateful to the Modrall firm because they’ve supported all of my pro bono activities. It’s a great law firm, and I have been allowed to participate in much that would not have been possible without their support. What I really hope is that every lawyer will take it upon herself to feel that she has a broader mission in front of her. I know that there are times in life when this isn’t possible. Believe me, I know what it’s like to wake up every two hours to feed a baby and to have sick children and still go to work. But life is long. If, when you are young, you acquaint yourself with the possibilities, somewhere along the way all those things come together, and you will be able to make a difference.

About the InterviewerRebekah Wright is a fire claim and litigation specialist with the USDA Forest Service. After graduating from the University of Houston Law Center in 2008, she was a Presidential Management Fellow from 2008 to 2010.


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. 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 — to give everyone a fighting chance.

The auction will take place Thursday, June 27 and Friday, June 28, 2013 at the Santa Fe Convention Center. Please help by donating an auction item for the event. Anything would be greatly appreciated.

Silent auction contributors will be promoted throughout the three-day Annual Meeting, in the event program, and in the weekly Bar Bulletin, a publication mailed to more than 7,000 in the New Mexico legal community. We expect more than 400 lawyers and their guests to attend the event. Your donation is also tax-deductible.

If you have an item you are willing to donate, please contact:Michaela Chavez

505-977-5653 [email protected] • [email protected]

Joe Conte505-797-6099 • [email protected]

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





legal education

18 Religious Accommodations in the Workplace

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

19 Ethics and Client Confidences: An Advanced Guide

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

23 2012 EP: The Disciplinary Process 2.0 EP Video Replay Center for Legal Education of NMSBF 505–797–6020 www.nmbarcle.org

23 Understanding and Planning Title Insurance in Commercial Real Estate


april

24 Commercial and Residential Landlord Tenant Law Update

5.6 G, 1.0 EP Albuquerque Sterling Education Services, Inc. 715–855–0495 www.sterlingeducation.com

24 Dissecting Medical Malpractice: A Litigation Overview for New and Advanced Practitioners 6.0 G, 1.0 EP

Center for Legal Education of NMSBF 505–797–6020 www.nmbarcle.org

25 Estate Planning a Long–Term Low Interest Rate Environment


26 New Medicare Tax Impact on Business Planning


26–27 2013 New Mexico Collaborative Law Symposium: The Basics

10.7 G, 1.0 EP Center for Legal Education of NMSBF 505–797–6020 www.nmbarcle.org

30 Ethics Issues in Representing Elderly Clients


30 Everyday Ethics in Your Practice 3.0 EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

2–3 Like-Kind Exchange Planning in Real Estate, Parts 1 and 2


7 The Basics of Employment Law 2012 6.1 G Video Replay Center for Legal Education of NMSBF 505–797–6020 www.nmbarcle.org

7 Choice of Entity for Service-Based and Professional Practice Businesses


7 Courthouse Dogs 2013 3.0 G Video Replay Center for Legal Education of NMSBF 505–797–6020 www.nmbarcle.org

7 Skeptically Determining the Limits of Scientific Evidence IV

4.5 G, 2.0 EP Video Replay Center for Legal Education of NMSBF 505–797–6020 www.nmbarcle.org

8 Ethics and the Use of Metadata in Litigation and Law Practice


10 Ethicspalooza 1.0–6.0 EP Center for Legal Education of NMSBF 505–797–6020 www.nmbarcle.org

14 Estate Planning for Education and Gifts to Minors


16 Attorney Ethics in Adding Lawyers to a Firm


May

http://www.nmbarcle.org




http://www.sterlingeducation.com

















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

effeCtive april 5, 2013

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

petitions for Writ of certiorari filed and pending:

Date Petition FiledNo. 34,092 State v. Hepple COA 30,115 04/03/13No. 34,091 Benjamin v. Nance 12-501 04/03/13No. 34,090 State v. Martinez COA 32,496 04/02/13No. 34,089 Ahlgrim v. Franco 12-501 04/01/13No. 34,088 Purifoy v. Stone COA 32,319 03/29/13No. 34,086 State v. Johnson COA 30,793 03/29/13No. 34,085 Badilla v. Walmart COA 31,162 03/28/13No. 34,084 State v. Lucero COA 31,932 03/28/13No. 34,083 Amethyst v. Terhune COA 31,165 03/28/13No. 34,082 State v. Nieto COA 30,806 03/27/13No. 34,081 State v. Parrish COA 31,701 03/27/13No. 34,080 Turley v. Valdez COA 31,404 03/27/13No. 34,077 Largo v. Janecka 12-501 03/25/13No. 34,076 State v. Martinez COA 32,424 03/22/13No. 34,074 State v. Maples COA 30,507 03/20/13No. 34,072 State v. Zumwalt COA 32,006 03/20/13No. 34,070 State v. Towler COA 32,484 03/18/13No. 34,066 Garcia v. Williams 12-501 03/15/13No. 34,065 Moore v. Nance 12-501 03/15/13No. 34,063 Uecker v. Hatch 12-501 03/15/13No. 34,069 Bank of Oklahoma v.

Martinez COA 32,481 03/14/13No. 34,067 Gutierrez v. Williams 12-501 03/14/13No. 34,062 State v. Williams COA 31,512 03/13/13No. 34,060 State v. Atwater COA 31,218 03/13/13No. 34,059 State v. Littleton COA 32,230 03/13/13No. 34,058 State v. Knotts COA 32,305 03/13/13No. 34,057 State v. Torres COA 31,567 03/13/13No. 34,056 State v. Stapleton COA 32,360 03/11/13No. 34,051 Ysasi v. Bravo 12-501 03/08/13 Response ordered; due 4/16/13 No. 34,047 State v. Ingram COA 30,961 03/05/13No. 34,023 State v. Garcia COA 30,852 02/13/13 Response ordered; filed 4/1/13 No. 33,994 Gonzales v. Williams COA 32,274 01/14/13No. 33,943 State v. Laura J. COA 31,324/31,374 12/05/12 Response to X-Petition filed 1/8/13 No. 33,868 Burdex v. Bravo 12-501 11/28/12 Response ordered; filed 1/22/13 No. 33,819 Chavez v. State 12-501 10/29/12No. 33,866 Reza v. State 12-501 10/15/12 Response ordered; filed 1/28/13 No. 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 09/14/12No. 33,539 Contreras v. State 12-501 07/12/12 Response ordered; due 10/24/12 No. 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. 33,565 State v. Ballard COA 30,187 05/02/12No. 33,571 State v. Miller COA 29,244 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. 33,725 State v. Pasillas COA 31,513 09/14/12No. 33,779 State v. Vento COA 30,469 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. 33,870 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 Productions, 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. 33,949 Rodriguez v. Del Sol

Shopping Center COA 30,421/30,578 01/17/13No. 33,952 Melendez v. Salls Brothers COA 32,293 01/18/13No. 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 03/01/13


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

No. 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 03/01/13No. 34,013 Foy v. Austin Capital COA 31,421 03/15/13No. 34,035 Town of Edgewood v. N.M.

Municipal Boundary Com. COA 30,768 03/29/13No. 34,027 State v. Hess COA 31,536 03/29/13No. 34,010 N.M. Cattle Growers v. N.M.

Water Quality Control COA 31,191 03/29/13No. 34,007 City of Albuquerque v.

AFSCME Local 3022 COA 31,075 04/05/13No. 34,039 Cavu Co. v. Martinez COA 32,021 04/05/13No. 34,044 State v. Riordan COA 31,795 04/05/13

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. 32,868 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. 32,968 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. 33,023 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. 33,257 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 08/15/12No. 33,364 Nettles v. Ticonderoga

Owners Association COA 31,342 09/10/12No. 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 11/13/12

No. 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

Therapy Practice Board COA 30,611 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. 33,594 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 Petroleu m COA 30,359 03/13/13No. 33,548 State v. Marquez COA 30,565 04/15/13No. 33,709 Charter Bank v.

Francoeur COA 30,551 04/16/13No. 33,567 State v. Leticia T. COA 30,664 04/30/13No. 33,566 State v. Leticia T. COA 30,664 04/30/13No. 33,772 City of Albuquerque v.

Blakenship COA 31,960 04/30/13

petition for Writ of certiorari denied: Date Order FiledNo. 34,041 Blake v. Janecka 12-501 04/04/13No. 34,061 Lopez v. Janecka 12-501 04/03/13No. 34,055 Smith v. Bravo 12-501 04/03/13No. 34,054 Weiss v. THI of N.M. COA 30,296 04/03/13No. 34,053 State v. Hicks COA 30,370 04/03/13No. 34,052 State v. Silva COA 32,402 04/03/13No. 34,048 State v. Baca COA 31,340 04/03/13No. 34,046 Pargin Realty v. Schmidt COA 31,689 04/03/13No. 34,045 Millar v. Dept. of

Workforce Solutions COA 31,581 04/03/13No. 34,043 State v. Martinez COA 32,271 04/03/13No. 34,040 Mendez v. Wells Fargo COA 32,388 04/03/13

http://nmsupremecourt.nmcourts.gov


puBlished opinions

Date Opinion Filed

No. 31322 11th Jud Dist McKinley JR-10-65, STATE v STEVEN B (affirm) 4/1/2013

No. 31475 9th Jud Dist Roosevelt CV-10-110, H BEGGS v CITY OF PORTALES (affirm in part, reverse in part) 4/2/2013

unpuBlished opinions

No. 31817 AD AD ADM-11-31 W SEVERNS v TAX & REV (affirm in part, reverse in part and remand) 4/1/2013

No. 32156 2nd Jud Dist Bernalillo CR-02-3530, STATE v C TOVAR (affirm) 4/1/2013

No. 32393 2nd Jud Dist Bernalillo CV-09-7735, CV-10-10353, G BECERRA v M SALAZAR (dismiss) 4/1/2013

No. 32437 8th Jud Dist Union CR-11-24, STATE v R BARQUIST (affirm) 4/1/2013

No. 32449 WCA-08-64139, G LOPEZ v SANDIA PREP (dismiss) 4/1/2013

No. 32456 2nd Jud Dist Bernalillo CV-09-4971, G BECERRA v ALLSTATE (dismiss) 4/1/2013

No. 32518 2nd Jud Dist Bernalillo CR-11-3587, STATE v C TOVAR (affirm) 4/1/2013

No. 31587 5th Jud Dist Lea CR-10-34, STATE v P MEEKS (affirm) 4/2/2013

No. 31647 13th Jud Dist Valencia JQ-11-1, CYFD v BRANDON C (affirm) 4/2/2013

No. 32599 2nd Jud Dist Bernalillo CR-10-5586, STATE v A ROMAN (reverse and remand) 4/2/2013

No. 32345 3rd Jud Dona Ana CR-11-338, STATE v M LOZANO (reverse) 4/3/2013

No. 32601 11th Jud Dist San Juan CV-06-749, AUSTIN LAND v NAVAJO TRIBAL (affirm) 4/3/2013

No. 30425 11th Jud Dist McKinley LR-09-29, STATE V A VARGAS (affirm) 4/4/2013

No. 31383 AD AD ADM-00-00, SW ENERGY v NM CONSTRUCTION (remand) 4/4/2013




No. 32473 WCA-04-57286, S JONES v HOLIDAY INN (dismiss) 4/4/2013

No. 32527 2nd Jud Dist Bernalillo CV-10-3737, GREEN TREE v B POPOVICH (affirm) 4/4/2013

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

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


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


clerk’s certificate dated March 27, 2013

Clerk’s CertifiCate of address and/or

telephone Changes

Matthew R. BacaNM Supreme CourtPO Box 848237 Don Gaspar Avenue (87501-2178)Santa Fe, NM 87504-0848505-827-4888505-827-4837 (fax)[email protected]

Meredith M. BakerLaw Office of Meredith Baker LLCPO Box 7415Albuquerque, NM 87194-7415505-697-1900505-933-6363 (fax)[email protected]

Sara Anne BlankenhornPO Box 473El Prado, NM 87529-0473

J. Michael BowlinBowlin Law Firm LLC7602 University Avenue, Suite 206Lubbock, TX 79423806-395-3130806-221-2412 (fax)[email protected]

Patricia Ann BradleyNM Bank & TrustPO Box 2300Albuquerque, NM 87103-2300505-830-8106505-830-8155 (fax)[email protected]

Frank Norman ChavezPO Box 1316Las Cruces, NM 88004-1316575-624-1227575-524-3393 (fax)[email protected]

Hon. Jennifer E. DeLaneySixth Judicial District Court855 S. Platinum AvenueDeming, NM 88030575-543-1546575-543-1606 (fax)

Christina R. EvolaPS-132 PalikirPohnpei, FSM [email protected]

Nancy Ana GarnerGarner Law Firm LLC1305 Luisa Street, Suite A3Santa Fe, NM 87505505-474-5300888-507-0410 (fax)[email protected]

Sam M. GillAndrews Kurth LLP 600 Travis Street, Suite 4200Houston, TX 77002713-220-4324713-238-5064 (fax)[email protected]

Courtney N. Hewes23 Big Bend LoopCloudcroft, NM 88317

Elizabeth C. HolmesOffice of the Public Defender505 Marquette Avenue NW, Suite 120Albuquerque, NM 87102-2159505-841-5100505-841-6953 (fax)[email protected]

Regina M. HurleyPO Box 81155400 Montgomery Blvd. NE #609-B (87109)Albuquerque, NM [email protected]

David Elias IdinopulosElias Law PC111 Isleta Blvd. SW, Suite AAlbuquerque, NM 87105505-221-6000480-779-1329 (fax)[email protected]

Kristina N. JohnPO Box 649Fort Defiance, AZ [email protected]

Heather M. LeBlancOffice of the Public Defender505 Marquette Avenue NW, Suite 120Albuquerque, NM 87102-2159505-841-5170505-841-5006 (fax)[email protected]

Terri Ann MazurKaye Scholer LLP425 Park AvenueNew York, NY 10022212-836-7120212-836-6620 (fax)[email protected]

Mollie C. McGrawMcGraw & Strickland LLC165 West Lucero AvenueLas Cruces, NM 88005575-323-1529575-680-1200 (fax)[email protected]

Barton L. PalmerBarton L. Palmer PC46 Kirova StreetNovosibirsk, Oblast 630102 [email protected]

John Theodore PalterPalter Stokley Sims Wright PLLC8115 Preston Road, Suite 600Dallas, TX 75225214-478-9280214-722-1077 (fax)[email protected]

Robert E. Poulson2760 Cliffrose Drive NEAlbuquerque, NM [email protected]

David ProperProper Law Firm LLCPO Box 6337340 E. LohmanLas Cruces, NM 88006-6337575-636-9455575-208-7279 (fax)[email protected]

Margaret Yvonne RomeroMY Romero Law LLC1100 Tijeras Road NWAlbuquerque, NM 87102505-399-9820505-242-2633 (fax)[email protected]

Modesto E. RosalesThe Law Office of Jeremy Coe423 S Spring AvenueTyler, TX 75702

Elizabeth A. RyanRyan Law Firm PCPO Box 1612400 N Pennsylvania Avenue, Suite 290 (88201)Roswell, NM [email protected]

Shelley A. Scott3414 Cascadera DriveAustin, TX [email protected]

Kimberly M.J. SimsPalter Stokley Sims Wright PLLC8115 Preston Road, Suite 600Dallas, TX 75225972-800-9141214-722-1077 (fax)[email protected]

Jeremy J. Smuckler12316 Willingdon RoadHuntersville, NC 28078

Denise A. SnyderSnyder Law LLC5345 Wyoming Blvd. NE, Suite 207Albuquerque, NM 87109505-465-9445505-884-4004 (fax)[email protected]


























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

Megan SpagnoloWuliger, Fadel & Beyer LLC1340 Sumner AvenueCleveland, OH 44115216-781-7777216-781-0621 (fax)[email protected]

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Clerk’s CertifiCate of name, address, and/or

telephone Changes

Effective August 1, 2012, the following attorneys have a new firm name:David Alan Freedman ([email protected])John Warwick Boyd [email protected])Nancy Hollander ([email protected])Joseph Goldberg ([email protected])David Herrera Urias ([email protected])Vincent J. Ward ([email protected])Michael Lee Goldberg (Of Counsel) ([email protected])

The firm name and address are as follows:Freedman Boyd Hollander Goldberg Urias & Ward PAPO Box 2532620 First Plaza NW, Suite 700 (87102)Albuquerque, NM 87125-0326505-842-9960505-842-0761 (fax)

Effective January 24, 2013, the following attorneys have a new address: Anne Walker Eley [email protected]. Brent Capshaw ([email protected])Christopher M. Spinner ([email protected])David Patrick Cowen ([email protected])Dustin O’Brien ([email protected])Evan R. Cochnar ([email protected])Joseph Peter Petrelli ([email protected])Kenneth H. Stalter ([email protected])Casey Levi Stone([email protected])Ryan Michael Keil ([email protected])Robert P. Tedrow ([email protected])Ronald M. Brambl Jr.([email protected])Sean M. FitzPatrick ([email protected])Shellie Ann Patscheck ([email protected])Steven H. Johnston ([email protected])John T. Beckstead ([email protected])

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The firm name, address, and telephone number are asfollows: Parnall Law FirmPO Box 80092025 San Pedro NE (87110)Albuquerque, NM 87198-8009505-268-6500505-268-8708 (fax)





































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


pending proposed rule changes open for coMMent:

Comment Deadline10-352 Judgments and appeals from adjudications and terminations of parental rights 04/17/13

Abuse and Neglect Forms10-501 Abuse & neglect petition 04/17/1310-502 Summons 04/17/1310-503 Motion for ex parte order 04/17/1310-504 Affidavit for ex parte order 04/17/1310-505A Ex parte custody order (child in state custody) 04/17/1310-505B Ex parte custody order (child not in state custody) 04/17/1310-510 Affidavit of indigency 04/17/1310-511 Motion to appoint counsel for parties 04/17/1310-512 Order appointing counsel for parties 04/17/1310-513 Motion for service by publication 04/17/1310-514 Order for service by publication 04/17/1310-515 Notice of pendency of action by publication 04/17/1310-520 Custody order 04/17/1310-521 ICWA notice 04/17/1310-522A Adjudicatory judgment and dispositional order (Uncontested/Non-ICWA) 04/17/1310-522B Adjudicatory judgment and dispositional order (Contested/Non-ICWA) 04/17/1310-522C Adjudicatory judgment and dispositional order (Uncontested/ICWA) 04/17/1310-522D Adjudicatory judgment and dispositional order (Contested/ICWA) 04/17/1310-530 Initial judicial review order 04/17/1310-531 Initial permanency order 04/17/1310-532 Permanency review order 04/17/1310-533 Periodic judicial review/Permanency order/ Extension of custody order 04/17/1310-540 Motion to terminate parental rights 04/17/1310-550 Motion to withdraw as counsel 04/17/1310-551 Order permitting withdrawal of counsel 04/17/1310-552 Request to withdraw as counsel and order approving substitution of counsel 04/17/1310-553 Notice of substitution of counsel 04/17/1310-554 Notice of appearance as counsel for child by guardian ad litem 04/17/1310-555 Motion to appoint attorney for fourteen- (14) year-old child 04/17/1310-560 Subpoena 04/17/1310-561 Notice of hearing 04/17/1310-562 Motion to intervene 04/17/1310-563 Report of mediation 04/17/1310-564 Order appointing/changing educational decision maker 04/17/13

ABA Ethics 20/20: Technology and Confidentiality;Detection of Conflicts of Interest16-100 Terminology 04/17/1316-101 Competence 04/17/1316-104 Communication 04/17/1316-106 Confidentiality of information 04/17/1316-117 Sale of law practice 04/17/1316-404 Respect for rights of third persons 04/17/13

Rules Concerning the Unauthorized Practice of Law17B-001 Jurisdiction 04/17/1317B-002 Appointment of the Disciplinary Board 04/17/1317B-003 Disciplinary counsel; duties and powers 04/17/1317B-004 Investigation 04/17/1317B-005 Civil injunction proceedings 04/17/1317B-006 Determination by the Supreme Court 04/17/1317B-007 Civil contempt proceedings 04/17/1317B-008 Immunities 04/17/1317B-009 General provisions 04/17/13

Pro Se and Non-Attorney Appearances in Civil Cases2-107 Pro se and attorney appearance 04/17/133-107 Pro se and attorney appearance 04/17/13

Non-Attorney Prosecutions in Criminal Cases6-108 Non-attorney prosecutions 04/17/137-108 Non-attorney prosecutions 04/17/138-111 Non-attorney prosecutions 04/17/13

Orders on Motions to Seal or Unseal Court Records4-118 Order on motion to seal court records 04/17/134-119 Order on motion to unseal court records 04/17/139-113 Order on motion to seal court records 04/17/139-114 Order on motion to unseal court records 04/17/13

Pro Se and Attorney Appearances in Criminal Cases Rules6-107 Entry of appearance 04/17/137-107 Entry of appearance 04/17/138-107 Entry of appearance 04/17/13

Withdrawal of Form 9-306 NMRA9-306 Withdrawal - Commitment for preliminary hearing 04/17/13

Judge Excusal and Recusal3-105 Assignment and designation of judges 04/17/133-106 Excusal; recusal; disability 04/17/13

Probable Cause in Criminal Complaint7-201 Commencement of action 04/17/13


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

Civil Forms to Implement and Uniform Owner-Resident Relations Act4-913 Writ of restitution (Restitution to Owner) 04/17/13 (Uniform owner-Resident Relations Act)4-913A Order setting escrow deposit/appeal bond (Uniform Owner-Resident Relations Act) 04/17/13

Preliminary Hearing Rule and Forms6-202 Preliminary hearing 04/17/139-206 Notice of preliminary hearing 04/17/139-206A Order on preliminary hearing 04/17/139-206B Order for extension of time for preliminary hearing 04/17/13

Bench Warrants for Failure to Pay Fines and Fees6-207 Bench warrants 04/17/138-206 Bench warrants 04/17/13

Voluntary Dismissal by the Prosecution and Refiled Proceedings6-506A Voluntary dismissal and refiled proceedings 04/17/138-506A Voluntary dismissal and refiled proceedings 04/17/13

Court Interpreters in Municipal Court8-113 Court interpreters in Municipal Court 04/17/13

Motions to Suppress Evidence6-304 Motions 04/17/138-304 Motions 04/17/13

Sealing of Records in Appeals from Administrative Proceedings1-079 Public inspection and sealing of court records 04/17/13

Pain and Suffering; Loss of Enjoyment of Life13-1807 Pain and suffering 04/17/1313-1807A Pain and suffering; loss of enjoyment of life 04/17/13

Second Degree Criminal Sexual Penetration14-956 Criminal sexual penetration in the second degree; force or coercion; essential elements 04/17/1314-956A Criminal sexual penetration in the second degree; for or coercion; child 13 to 18; essential elements 04/17/13

Indecent Exposure14-970 Indecent exposure; essential elements 04/17/1314-970A Aggravated indecent exposure; essential elements 04/17/13

Tampering with Evidence14-2241 Tampering with evidence 04/17/1314-6019 Special verdict; tampering with evidence 04/17/13

To view all pending proposed rule changes (comment period open or closed), visit the New Mexico Supreme Court’s website at http://nmsupremecourt.nmcourts.gov.

To view recently approved rule changes, visit the New Mexico Compilation Commission’s website at http://www.nmcompcomm.us.



http://www.nmcompcomm.us


AdvAnce OpiniOnsFrOm the new mexicO supreme cOurt And cOurt OF AppeAls

http://www.nmcompcomm.us/

Certiorari Granted, March 1, 2013, No. 34,009


Opinion Number: 2013-NMCA-038

Topic Index:Appeal and Error: Standard of Review

Constitutional Law: Confrontation; and Suppression of EvidenceCriminal Law: Controlled Substances

Criminal Procedure: Exigent Circumstances; Expert Witness; Motion to Suppress; Right to Confrontation; Warrantless Search;

and WitnessesEvidence: Drug Testing; Expert Witness; and Suppression of Evidence

STATE OF NEW MEXICO,Plaintiff-Appellee,

versusJEFF HUETTL,

Defendant-Appellant.No. 31,141 (filed December 27, 2012)

APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTYFREDDIE J. ROMERO, District Judge

opinion

Jonathan B. sutin, Judge

1 Defendant Jeff Huettl appeals his con-victions for one count each of possession of a controlled substance (methamphetamine) and possession of drug paraphernalia. De-fendant argues that his rights under both the New Mexico and the United States Con-stitutions were violated by the warrantless police entry into the motel room in which he was arrested. He also argues that his Sixth Amendment constitutional right to confront witnesses against him was violated when the State failed to present the testimony of the forensic scientist who placed the seized sub-stance on the spectrophotometer machine for testing and, instead, the State presented testimony of a different analyst who inter-

GARY K. KINGAttorney General

YVONNE M. CHICOINEAssistant Attorney General

Santa Fe, New Mexicofor Appellee

JACQUELINE L. COOPERChief Public DefenderKARL ERICH MARTELL

Assistant Appellate DefenderSanta Fe, New Mexico

for Appellant

preted the results of the machine’s data. We affirm.BACKGROUND2 In October 2009, Police Officer John Clay in Roswell, New Mexico, was dis-patched to the Frontier Motel to look into an “unknown disturbance” in Room 102 of the motel. From the outside of Room 102, through a gap in the curtains, Officer Clay observed Defendant sitting at a table using a lighter under a spoon attempting to heat up an unknown substance and then attempting to draw the substance into a syringe. Based on his training and experience, Officer Clay deduced that Defendant was preparing il-legal narcotics (either methamphetamine or heroin) for injection. Officer Clay called for back-up, then went to the motel office to get a key for Room 102. Two fellow officers arrived; Officer Clay was concerned that if

they did not enter the room immediately, the supposed illegal substance would be lost or destroyed or that Defendant was in danger of a possible overdose. Officer Clay and the other two officers used the key to enter Room 102. Defendant was arrested. Officer Clay collected a spoon with a white crystalline substance in it, a loaded syringe, a number of other syringes, and a small baggie as evidence. Field testing of the spoon and the loaded syringe indicated the presence of methamphetamine and amphetamine, and the evidence was later sent to the crime lab.3 In regard to the laboratory tests that proved the evidence included metham-phetamine, the State presented forensic scientist and forensic lab supervisor, Shawn Hightower. Mr. Hightower explained that the evidence was analyzed using an infrared spectrophotometer, an instrument that di-rects infrared light onto the sample. Because different compounds transmit and absorb in-frared light at different rates, the instrument generates data that gives analysts a “clear picture” and a “unique picture” of differ-ent compounds. The raw data produced by the spectrophotometer is interpreted by an analyst. As to the evidence in this case, Mr. Hightower reviewed the data and formed an expert opinion that the residue from the spoon and the substance from the plastic bag were methamphetamine. Mr. Hightower did not personally place the evidence onto the spectrophotometer because that aspect of the testing was done by another lab analyst, Karla Nardoni.4 A jury found Defendant guilty of possession of methamphetamine and pos-session of drug paraphernalia. On appeal, Defendant contends that the district court erred in denying his pretrial motion to sup-press evidence, which was made pursuant to an argument that the warrantless police entry into Room 102 was not justified by any exception to the warrant requirement. Defendant further contends that the district court erred in permitting Mr. Hightower to testify about the spectrophotometer testing because “[Mr.] Hightower . . . was not the person who actually tested the purported methamphetamine.” According to Defen-dant, because he did not have an opportu-nity to cross-examine Ms. Nardoni, he was deprived of his Sixth Amendment right to confrontation.

http://www.nmcompcomm.us/


5 For the purpose of conducting a thor-ough analysis of Defendant’s confrontation claim, we requested supplemental brief-ing. The parties were asked to respond to the proposed conclusion that Defendant’s confrontation right had been violated by the State’s presentation of Mr. Hightower’s testimony insofar as his testimony necessar-ily implied the propriety and correctness of Ms. Nardoni’s testing process. In our order for supplemental briefing we also proposed the theory that Mr. Hightower’s testimony, insofar as it relied upon Ms. Nardoni’s work, “was effectively the functional equivalent of ex parte in court testimony” which was “no different than if a report containing the details of the conduct of the testing process . . . had either been relied on alone, or had been identified by a testifying surrogate[.]”6 We hold that exigent circumstances jus-tified the officers’ warrantless entry and that the court did not err in denying Defendant’s motion to suppress. We further hold that be-cause the evidence shows that Ms. Nardoni’s role in the actual testing process appeared to have been limited to simply placing the substance onto the spectrophotometer, and because Mr. Hightower testified only as to his own analysis and interpretation of the data generated by the spectrophotometer, concluding that the evidence contained methamphetamine, Defendant’s right to confrontation was not violated. Accordingly, we affirm. DISCUSSIONThe Suppression Issue7 Defendant unsuccessfully moved before trial to suppress “all evidence and statements obtained in violation of Article II, Section 10[] of the New Mexico Constitution and the Fourth Amendment [to] the United States Constitution.” The motion was premised on Defendant’s contention that the police entry into Room 102 was “war-rantless and without basis in any exception to the warrant requirement.” “An officer’s warrantless entry into a person’s home is the exact type of intrusion against which the language of the Fourth Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution is directed.” State v. Gutierrez, 2008-NMCA-018, ¶ 16, 143 N.M. 422, 176 P.3d 1154. It is well established in New Mexico that exigent circumstances, including the need to prevent destruction of evidence, may justify a warrantless home entry. Id.8 In denying Defendant’s motion, the district court entered the following conclu-sions of law.

2. Officer Clay observed Defen-dant in plain view and had probable cause to believe that

Defendant was in the act of pos-sessing and using illegal drugs.

3. Officer Clay had probable cause to believe that Defendant was engaged in illegal activity and that if immediate entry into the room was not made[,] that evidence would be lost or de-stroyed.

4. Exigent circumstances existed for Officer Clay and the other officers to enter the room and seize the items observed with-out a warrant.

5. Defendant did not have a rea-sonable expectation of privacy to that which could be observed by Officer Clay through par-tially opened curtains when Officer Clay was standing on a common walkway where anyone could see through the window without intruding into the room or using artificial means to observe.

6. Defendant’s rights under the Fourth Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution were not violated.

(Citations omitted.)9 On appellate review of a motion to sup-press evidence, we review the district court’s factual determinations for substantial evi-dence and its legal determinations de novo. State v. Ketelson, 2011-NMSC-023, ¶ 9, 150 N.M. 137, 257 P.3d 957. Additionally, we review the district court’s determination that an exigency existed de novo. State v. Allen, 2011-NMCA-019, ¶ 14, 149 N.M. 267, 247 P.3d 1152.10 Relying on State v. Garcia, 2005-NMSC-017, ¶ 29, 138 N.M. 1, 116 P.3d 72, and State v. Gomez, 1997-NMSC-006, ¶ 39, 122 N.M. 777, 932 P.2d 1, Defendant states that the New Mexico Constitution “requires a warrantless seizure of evidence from within a vehicle to be justified by a particularized showing of exigent circumstances.” Defen-dant argues that there was no particularized showing that Defendant was in danger or that the evidence would have been destroyed. Accordingly, Defendant contends that the district court erred in finding that exigent circumstances justified a departure from the warrant requirement.11 Warrantless entry into a residence under the exigent circumstances rule requires probable cause plus exigent circumstances. State v. Nance, 2011-NMCA-048, ¶ 12, 149 N.M. 644, 253 P.3d 934, cert. denied, 2011-NMCERT-004, 150 N.M. 648,

364 P.3d 1171. Because Defendant does not raise an issue as to probable cause, we deem Defendant to have abandoned any argument to that effect. See State v. Dickert, 2012-NMCA-004, ¶ 34, 268 P.3d 515 (rec-ognizing that “issues not argued on appeal are deemed abandoned”). We therefore focus on exigent circumstances.12 “Exigent circumstances means an emergency situation requiring swift action to prevent imminent danger to life or . . . to forestall the imminent . . . destruction of evi-dence.” Campos v. State, 117 N.M. 155, 158, 870 P.2d 117, 120 (1994) (internal quotation marks and citation omitted). “The standard for determining exigency is an objective one; the question is whether in a given situation a prudent, cautious, and trained officer, based on facts known, could reasonably conclude swift action was necessary.” Allen, 2011-NMCA-019, ¶ 15 (internal quotation marks and citation omitted). 13 The district court did not err in concluding that an exigency justified the officers’ warrantless entry into Room 102. Officer Clay testified that Defendant’s ap-parent intention to “shoot-up” presented two exigencies: the destruction of evidence that would occur if Defendant were to inject himself with the suspected illegal drugs; and the possibility that, as is “typical for I.V. drug users,” Defendant would overdose.14 Substantial evidence supported the district court’s conclusion “that if immedi-ate entry into the room was not made[,] that evidence would be lost or destroyed” by virtue of Defendant’s injection of the suspected illegal narcotics. The destruc-tion of drug evidence presents a sufficient exigency to justify a warrantless entry. See State v. Pool, 98 N.M. 704, 707, 652 P.2d 254, 257 (Ct. App. 1982) (stating that an officer’s warrantless entry into the defen-dant’s hotel room was justified based on the officer’s good faith belief that the defendant would flush the marijuana he had in his possession down the toilet). Under these circumstances, the district court properly concluded that the officers were justified in their actions. Because we conclude that the officers’ warrantless entry was justified based on the destruction-of-evidence exigency, we do not further examine whether their actions were justified based upon the possibility of overdose from suspected intravenous drug use. 15 Finally, to the extent that Defendant requests reversal on the basis of Officer Clay’s alleged untruthfulness regarding his observation of Defendant “ ‘cook[ing]’ methamphetamine for injection,” we are not persuaded. Defendant’s argument in this re-gard is based upon the testimony of a former


drug user, who testified to having injected methamphetamine “an infinite number of times” and who stated that he, personally, had never cooked methamphetamine be-fore injecting it, nor had he ever heard of or seen anyone doing so. The jury was free to draw its own conclusions regarding the credibility of the witnesses, and we will not second-guess its determination, nor will we reweigh the evidence nor substitute our own judgment for that of the jury. State v. Garcia, 2011-NMSC-003, ¶ 5, 149 N.M. 185, 246 P.3d 1057.The Confrontation Clause Issue16 Under the Sixth Amendment to the United States Constitution, “every criminal defendant shall enjoy the right . . . to be confronted with the witnesses against him.” State v. Tollardo, 2012-NMSC-008, ¶ 15, 275 P.3d 110 (internal quotation marks and citation omitted). The Confrontation Clause applies to witnesses against the accused who provide testimony for the purpose of estab-lishing or proving some fact. Id. We review claimed violations of the confrontation right de novo. Id.17 Current Confrontation Clause ju-risprudence stems from Crawford v. Wash-ington, 541 U.S. 36 (2004). In Crawford, the Court reinterpreted the Confrontation Clause by examining its historical underpin-nings. Id. at 42-43. The Court explained that by adopting the Confrontation Clause, the First Congress sought to eschew the civil law practice, which had, at times, been employed in England and in the colonies, of using the ex parte statements of witnesses against the accused which were “read in court in lieu of live testimony[.]” Id. at 43, 47-49. The civil law practice was marked by the trial presentation of witness statements that had been gathered through the private judicial or government-official examination of wit-nesses in the absence of the accused and without any opportunity for the accused to confront or “defend himself against his defamers.” Id. (internal quotation marks and citation omitted). 18 It is against this historical backdrop, the Crawford Court concluded, that the Sixth Amendment must be interpreted. Id. at 50. Focusing on “the principal evil at which the Confrontation Clause was directed[,]” i.e., “the civil[]law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused[,]” the Court turned to the language of the Confrontation Clause, particularly its application “to ‘witnesses’ against the accused[.]” Id. at 50-51. “[I]n other words,” the Court explained, the Con-frontation Clause applies to “those who ‘bear testimony.’ ‘Testimony,’ in turn, is typically

‘a solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” Id. at 51 (alteration and cita-tions omitted). Thus, the Court instructed, the Confrontation Clause applies specifically to testimonial out-of-court statements. Id. at 51. 19 Although the Crawford Court declined to “spell out a comprehensive definition of ‘testimonial[,]’ ” it identified a “core class of ‘testimonial’ statements[.]” Id. at 51-52, 68. This “core class of ‘testimonial’ statements” includes “ex parte in-court testimony or its functional equivalent[.]” Id. at 51. The “functional equivalent” of ex parte in-court testimony was defined by example as “ma-terial such as affidavits, custodial examina-tions, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutori-ally[.]” Id. (internal quotation marks and citation omitted). Additionally, the Court articulated a guiding principle to be used in identifying testimonial statements—that is, to what extent does the alleged confronta-tion violation resemble “the abuses at which the Confrontation Clause was directed.” Id. at 52, 68 (explaining that “[w]hatever else the term [“testimonial”] covers, it applies at a minimum to prior testimony at a pre-liminary hearing, before a grand jury, or at a former trial; and to police interrogations [because t]hese are the modern practices with [the] closest kinship to the abuses at which the Confrontation Clause was directed”); see also Williams v. Illinois, ___ U.S. ___, 132 S. Ct. 2221, 2242 (2012) (stating that the Confrontation Clause prohibits “modern-day practices that are tantamount to the abuses that gave rise to the recognition of the confrontation right”). But see United States v. Moon, 512 F.3d 359, 362 (7th Cir. 2008) (explaining that a laboratory’s “raw results” are not testimonial because data are not statements, a machine is not a witness against anyone, and “[p]roducing spectrographs . . . in court would serve no one’s interests”).20 Following Crawford, the Supreme Court decided three cases that are pertinent to our analysis insofar as they involved sci-entific reports: Williams, 132 S. Ct. 2221; Bullcoming v. New Mexico, __ U.S.__, 131 S. Ct. 2705 (2011); and Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). In Melendez-Diaz, the trial court admitted into evidence three “certificates of analysis” from the state forensic laboratory which stated that the laboratory, having analyzed a sub-stance that was seized from the defendant, concluded that the substance was cocaine. 557 U.S. at 307-09 (internal quotation marks omitted). The Court determined that

the admission of the certificates violated the defendant’s right to confrontation because the certificates, which were “quite plainly affidavits[,]” fell within the “core class of tes-timonial statements” described in Crawford. Melendez-Diaz, 557 U.S. at 310-11 (internal quotation marks and citation omitted).21 In Bullcoming, the laboratory report of a non-testifying analyst that reflected the defendant’s blood alcohol content was admitted into evidence at the defendant’s trial in violation of the defendant’s con-frontation right. Bullcoming, 131 S. Ct. at 2709-10, 2718. Noting the similarities between the laboratory report in Bullcoming and the certificates/affidavits in Melendez-Diaz, the Court held that the Bullcoming report, like the Melendez-Diaz affidavits, “fell within the core class of testimonial statements[.]” Bullcoming, 131 S. Ct. at 2717 (internal quotation marks and citation omitted) (explaining that like the analysts in Melendez-Diaz, the non-testifying ana-lyst in Bullcoming tested the evidence and prepared a formalized, signed document concerning the result of his analysis). The Court rejected the prosecution’s attempt to meet the confrontation requirement by presenting the non-testifying analyst’s report through in-court “surrogate testimony” of an analyst who had neither participated in nor observed the testing of the defendant’s blood sample and who had no “independent opinion” concerning the defendant’s blood alcohol content. Bullcoming, 131 S. Ct. at 2709-10, 2715-16 (internal quotation marks omitted). The Court explained that “when the [prosecution] elected to introduce [the non-testifying analyst’s] certification, [the non-testifying analyst] became a witness” whom the defendant had the right to con-front. Id. at 2716. 22 In Williams, the plurality held that the defendant’s confrontation right was not violated by the prosecution’s presentation of testimony of a laboratory analyst who, hav-ing compared the defendant’s DNA profile generated in her own laboratory with a DNA profile generated in an outside laboratory, testified that the two profiles were a match. Williams, 132 S. Ct. at 2229-30, 2239. Williams was a rape case, and the outside laboratory had generated a DNA profile from semen that was taken from the victim’s sexual-assault kit. Id. at 2227-29. The defen-dant claimed a confrontation right violation that stemmed from the testifying analyst’s affirmative answer to the prosecution’s question, “[w]as there a computer match generated of the male DNA profile found in semen from the vaginal swabs of [the victim] to a male DNA profile that had been identified as having originated from [the defendant]?”


Id. at 2236 (internal quotation marks omit-ted). The “argument advanced to show a Confrontation Clause violation” was that, because the testifying analyst lacked personal knowledge that the profile produced by the outside laboratory was, in fact, based on a sample from the victim’s sexual assault kit, her affirmative answer to the prosecution’s question constituted testimony concerning a fact about which the analyst had no per-sonal knowledge—that is, that the outside laboratory produced a DNA profile from the victim’s sexual assault kit and not from another source. Id. This argument carried no weight with the plurality, however, which clarified that the analyst “did [not] testify to anything that was done at the [outside] lab, and she did not vouch for the quality of [the outside laboratory’s] work.” Id. at 2235. The plurality explained that the testifying analyst did not “testify to anything that was done at [the outside laboratory;]” rather, in answer-ing the prosecution’s question, she “simply assumed [the] premise [of the prosecutor’s question] to be true[.]” Id. at 2235-36. 23 The plurality in Williams held that the outside laboratory’s DNA report was not admitted for the truth of the matter as-serted therein; but, the plurality explained, even if it had been admitted for its truth, they “would nevertheless conclude that there was no Confrontation Clause viola-tion.” Id. at 2239-40, 2242. Relying on its Crawford historically based interpretation of the Confrontation Clause, the plurality reiterated that the “Confrontation Clause . . . prohibit[s] modern-day practices that are tantamount to the abuses that gave rise to the recognition of the confrontation right.” Williams, 132 S. Ct. at 2242. But, the plurality cautioned, “any further expansion would strain the constitutional text.” Id. The plurality reasoned that insofar as its primary purpose was not to accuse the defendant or to create evidence for use at trial, the DNA profile, in Williams, unlike the certificates/affidavits at issue in Melendez-Diaz and the report at issue in Bullcoming, bore “little if any resemblance to the historical practices that the Confrontation Clause aimed to eliminate.” Williams, 132 S. Ct. at 2243-44 (internal quotation marks and citation omitted). 24 In support of his claimed confronta-tion right violation, Defendant argues in his brief-in-chief that he was deprived of his right to confrontation when the State failed to produce Ms. Nardoni for cross-exami-nation. Relying on Bullcoming, he reasons that, because Ms. Nardoni performed the “initial part of the testing[,]” he had a right to confront her on issues surrounding the following:

the receipt of the substance from the police, the removal of the substance from the package, the confirmation of the substance’s condition and the cross-reference of the substance’s identification with the accompanying paperwork, the actual physical placement of the substance onto the infrared spectrophotometer and the initia-tion of the testing together with the confirmation that the testing was done properly and without [the] possibility of contamina-tion or confusion with a different substance[.]

25 In supplemental briefing, Defendant essentially reiterates the argument of his brief in chief, stating that he was deprived the opportunity to confront Ms. Nardoni “regarding the actual testing process of the sample at issue.” Additionally, in response to our request for supplemental briefing, Defendant argues that the court erred in permitting Mr. Hightower to testify be-cause it constituted the presentation of Ms. Nardoni’s testimonial statement which was “no different than if [Ms. Nardoni’s] report alone had been presented[.]” We examine Defendant’s confrontation claims in turn, beginning with the claim that he was de-prived of his right to confront Ms. Nardoni regarding her participation in the testing process. A. Claimed Right to Confront Ms.

Nardoni26 Considering Defendant’s claim from a Crawford perspective, we do not believe that Ms. Nardoni’s participation in the testing process bore any resemblance to the abuses at which the Confrontation Clause was directed. See Crawford, 541 U.S. at 68. The State in this case never attempted to admit into evidence any out-of-court “dec-laration or affirmation” of Ms. Nardoni. See id. at 51 (explaining that the focus of the Confrontation Clause is “witnesses against the accused” who have made “a solemn declaration or affirmation . . . for the pur-pose of establishing or proving some fact” (alteration, internal quotation marks, and citations omitted)). We note, too, that the data that was generated by Ms. Nardoni’s operation of the spectrophotometer was not independently offered or admitted into evi-dence and that, even had it been admitted, there would be no confrontation concern because the spectrophotometer-generated graph was not a testimonial statement that would give rise to a confrontation right. See Moon, 512 F.3d at 361-62 (distinguishing the non-testimonial raw data produced by a scientific instrument from the testimonial

interpretation of those data and holding that the defendant’s confrontation right was not violated by the admission into evidence of a “readout” from an infrared spectrometer because the “readout” was not a testimonial statement).27 In short, no testimonial statement by Ms. Nardoni or a functional equivalent was admitted as evidence against Defendant. See Crawford, 541 U.S. at 50 (explaining that the Confrontation Clause was directed at the “principal evil” of the use of ex parte testimony as evidence at trial against the accused). Thus in no way was Ms. Nar-doni a “witness against” Defendant; and, accordingly, Defendant did not have a constitutional right to confront her. See id. at 51 (explaining that the Confrontation Clause applies “to ‘witnesses’ against the accused” (citation omitted)). To the extent that Defendant claims that the testing pro-cess itself—that is, Ms. Nardoni’s operation of the spectrophotometer that led to the production of raw data, was activity that constituted a testimonial statement that gave rise to his confrontation right, for the reasons that follow, we do not agree. 28 Williams, Bullcoming, and Melendez-Diaz do not support the notion that a defen-dant has the right to confront a laboratory analyst who, having participated in some aspect of evidence analysis, nevertheless did not record any certifications, statements, or conclusions that were offered as evidence. Unlike the analysts in Bullcoming and Me-lendez-Diaz, Ms. Nardoni did not make, and the State did not seek to admit, any formal statements or declarations as to her testing process or as to her conclusions. Thus, un-like the affidavits in Melendez-Diaz and the certifications in the report in Bullcoming, no out-of-court statement of Ms. Nardoni’s was offered or admitted into evidence that fell within, or even resembled, the core class of testimonial statements that are con-comitant with the confrontation right. See Bullcoming, 131 S. Ct. at 2717 (concluding that the certificate in Bullcoming, like the Melendez-Diaz affidavits, “fell within the core class of testimonial statements” (internal quotation marks and citation omitted)); see also Crawford, 541 U.S. at 51 (stating that the functional equivalent of ex parte in-court testimony is “material such as affidavits, custodial examinations, prior testimony . . . , or similar pretrial statements” (internal quotation marks and citation omitted)). 29 Nor does Williams, with its admoni-tion against “strain[ing] the constitutional text” by extending the reach of the Confron-tation Clause beyond that which resembles “the historical practices that the Confronta-tion Clause aimed to eliminate[,]” support


Defendant’s argument that he had a right to confront Ms. Nardoni. Williams, 132 S. Ct. at 2242, 2244 (internal quotation marks and citation omitted). The testing process at issue in this case is akin to the process of the outside laboratory in Williams. Here, as in Williams, no inculpating report of the testing process or conclusions of a non-testifying analyst were offered or admitted into evi-dence. In both cases, the testifying analyst assumed the accuracy of a result that was not in evidence, but testified only to his or her independent conclusion when determining whether the test result matched another test result. Here, as in Williams, nothing that resembled the objectionable civil law practice of presenting ex parte testimony or its functional equivalent occurred. 30 Defendant is left solely with a chain-of-custody attack based on the fact that Ms. Nardoni did not testify at trial regarding her placement of the evidence onto the spec-trophotometer. In fact, at trial, Defendant argued that the State had not produced affidavits from the analyst who actually fed the substance into the machine and from the police evidence custodian and, therefore the foundation was insufficient because the chain of custody had failed. Defendant faced an upstream battle on this issue. Chain-of-custody testimony by Officer Clay and Mr. Hightower established that the substance in question was transported by Officer Clay from the motel room to the police depart-ment, where it was field tested, booked into “property” (a secure area of the police department), and then sent by Detective Fresquez from the police department to the laboratory.31 The absence of Ms. Nardoni’s tes-timony regarding her role in the chain of custody went to the weight of the evidence not to the admissibility of it. See Melendez-Diaz, 557 U.S. at 311 n.1 (explaining that “gaps in the chain of custody normally go to the weight of the evidence rather than its admissibility” and stating that “it is not the case[] that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case” (alteration, internal quotation marks, and citation omitted)). The district court concluded that the chain of custody was sufficient because a “preponderance of the evidence” showed that the evidence was what it purported to be. See State v. Rodriguez, 2009-NMCA-090, ¶ 24, 146 N.M. 824, 215 P.3d 762 (stating that the admission of evidence is within the district court’s discretion and that the court does not abuse its discretion “when the evidence is shown by a preponderance of

the evidence to be what it purports to be”). Defendant does not challenge the district court’s ruling in this regard.32 Defendant nevertheless asserts that Bullcoming stands for the proposition that chain-of-custody issues “bear with them con-frontation rights,” thereby arguing that he had a right to confront Ms. Nardoni regarding her role in the chain of custody. The aspects of the Bullcoming analysis upon which Defendant rests his claim stand for the proposition that where an analyst has formally certified that she has properly performed specific chain-of-custody activities, and where that formal certification has been admitted into evidence, the defendant has a right to cross-examine the certifying analyst. Bullcoming, 131 S. Ct. 2714-15. We do not believe that the Bullcom-ing Court abrogated or intended otherwise to override the Melendez-Diaz Court’s dictum, noted in the previous paragraph of this Opin-ion, that gaps in the chain of custody go to the weight, not the admissibility of evidence. Melendez-Diaz. 557 U.S. at 311 n.1. And here, unlike the non-testifying analyst in Bullcoming, no chain-of-custody certification was presented at trial. 33 In sum, under the circumstances of this case, we do not believe that Ms. Nar-doni’s role in the testing process gave rise to a Sixth Amendment right to confrontation. The Confrontation Clause applies specifi-cally to the admission against a defendant of ex parte out-of-court testimony or its functional equivalent. In this case, no Ms. Nardoni-generated testimony or testimonial statement or its equivalent existed or was offered or admitted in evidence, and we see no legal basis upon which to conclude that Ms. Nardoni’s activity came within the confrontation requirement. We turn now to Defendant’s alternative confrontation viola-tion theory.B. Claimed Confrontation Violation by

Mr. Hightower’s Testimony 34 The Confrontation Clause “forbids the introduction of testimonial hearsay as evidence in itself, but it in no way prevents expert witnesses from offering their inde-pendent judgments merely because those judgments were in some part informed by their exposure to otherwise inadmissible evidence.” United States v. Johnson, 587 F.3d 625, 635 (4th Cir. 2009). Under Crawford, “[t]he question is whether the expert is, in essence, giving an independent judgment or merely acting as a transmitter for testi-monial hearsay.” Johnson, 587 F.3d at 635. Provided that the expert is applying personal training and experience to the evidence and provided that he or she testifies to his or her independent judgment, derived from an in-dependent evaluation of that evidence, there

will typically be no confrontation problem because the expert’s opinion “will be an original product that can be tested through cross-examination.” Id. 35 Since the Supreme Court’s Crawford decision, there has emerged a clear diver-gence between two types of expert testi-mony in cases involving the presentation of scientific evidence, one permissible and one impermissible. What has emerged as clearly permissible under the Confronta-tion Clause and under the Federal Rule of Evidence 703, and the identical New Mexico Rule of Evidence, Rule 11-703 NMRA, is expert, scientific testimony based upon facts or data of which the expert has been made aware, even when those facts or data would otherwise be inadmissible, provided that the expert testifies only to his or her own, independently derived conclusions. See, e.g., Moon, 512 F.3d at 360-62 (hold-ing as permissible, under the Confrontation Clause and under Federal Rule of Evidence 703, testimony of a chemist who testified, based on the “output” of an infrared spec-trometer, which had been generated by a non-testifying lab analyst, that a substance in evidence was cocaine). 36 In other words, an expert who has analyzed the raw data generated by another analyst and who has formed independent conclusions based upon that analysis may testify as to those conclusions. See Williams, 132 S. Ct. at 2233 (“[A]n expert witness may voice an opinion based on facts concerning the events at issue in a particular case even if the expert lacks first-hand knowledge of those facts.”); Moon, 512 F.3d at 362 (rec-ognizing that “the Sixth Amendment does not demand that a chemist or other testify-ing expert have done the lab work himself ” and holding that the testifying analyst “was entitled to analyze [and testify regarding] the data that [the non-testifying analyst] had obtained”); see also United States v. Mirabal, No. CR 09-3207 JB, 2010 WL 3834072, at *2, *4, *8 (D.N.M. Aug. 7, 2010) (per-mitting an expert to testify as to her own opinion based on her review of the raw data generated by a non-testifying analyst’s test-ing of the substance at issue because “[t]he person whose opinions are being presented will be live in the courtroom and available for cross-examination, thus satisfying the Confrontation Clause”); State v. Gonzales, 2012-NMCA-034, ¶¶ 1, 19, 274 P.3d 151 (holding that the prospective cause-of-death testimony of a doctor who did not perform the autopsy would be permissible under the Sixth Amendment provided that the testimony was based on the doctor’s own opinions based on her review of the raw data from the autopsy).


37 What has emerged as clearly impermis-sible is an expert’s testimony which is based solely upon a non-testifying analyst’s analysis and conclusions. See, e.g., Bullcoming, 131 S. Ct. at 2717-18; State v. Moncayo, 2012-NMCA-066, ¶¶ 3, 8-9, 12, 284 P.3d 423 (holding that the defendant’s confrontation right was violated where an analyst testified as to the content of a report prepared by a non-testifying analyst and not to his inde-pendently derived expert opinion); State v. Brewington, 693 S.E.2d 182, 184-85, 189-90 (N.C. Ct. App. 2010) (reversing the defen-dant’s conviction based on a confrontation violation that stemmed from the testimony of an analyst who, having reviewed another analyst’s notes, lab report, and conclusions, testified that the evidence at issue was cocaine; but also explaining that had the testifying analyst “offered her own expert opinion based on independent analysis, then her use of the underlying report prepared by [the non-testifying analyst] as a source of data facilitating that analysis would not violate [the] defendant’s right to confrontation”).38 Under this impermissible scenario, the expert will have failed to form an indepen-dent opinion and is merely acting as a con-duit for the presentation of a non-testifying witness’s testimonial hearsay. See Johnson, 587 F.3d at 635 (stating that “[a]n expert witness’s reliance on evidence that Crawford would bar if offered directly only becomes a problem where the witness is used as . . . a conduit or transmitter for testimonial hearsay”); Brew-ington, 693 S.E.2d at 191 (explaining that “[i]f the substance of a testimonial document is to be admitted into evidence, the author of the testimonial document must be subjected to confrontation”). This practice, commonly referred to as “parroting,” is a violation of the right to confrontation. See, e.g., Johnson, 587 F.3d at 635 (explaining that “[a]llowing a witness simply to parrot out-of-court testi-monial statements . . . in the guise of expert opinion” would constitute an impermissible evasion of the Confrontation Clause (internal quotation marks and citation omitted)).39 While Defendant would have us hold that Mr. Hightower’s testimony falls into the impermissible category, the facts of this case do not permit such a conclusion. Mr. Hightower testified only as to his own analysis of the raw data generated by the spectrophotometer and to his independent conclusion based on his analysis of that raw data. His testimony was permissible under Rule 11-703. Further, he did not testify as to any testimonial statement or conclusion of Ms. Nardoni.Response To The Dissent40 The dissent in over two pages discusses “the science and technology on which the

infrared spectrophotometer test is based.” Dissenting Op. ¶ 52. None of this was before the district court. In that discussion, the dissent characterizes the spectrophotometer test as consisting of two essential component parts: (1) focusing the beam on the sample of an unknown substance and (2) comparing the graphical chart produced by the machine to the graphical charts of known substances. Dissenting Op. ¶¶ 53-54. As to the first part, the dissent lists three safeguards that Ms. Nardoni needed to take to ensure that there was no cross-contamination of the unknown substance. Dissenting Op. ¶ 54. According to the dissent, because Ms. Nardoni was not able to testify about these safeguards, Defen-dant’s right to confrontation was violated.41 There are two problems with this analysis. First, the record only has testimony regarding one safeguard. While Mr. High-tower was asked general questions about cleaning the surface of a spectrophotometer, no other possible safeguard was mentioned at trial. Secondly, there is a lack of preserva-tion. The record reveals that Defendant at no time actually objected on confrontation grounds in relation to any particular safe-guard, including the cleaning aspect of the testing. His objection was simply that Mr. Hightower was not the analyst who placed the evidence on the spectrophotometer.42 Even if we were to assume that the is-sue was preserved, our reading of supporting case law also differs from that of the dissent. The dissent principally relies on Bullcom-ing and on two cases decided only a few months apart by the District of Columbia Court of Appeals, Roberts v. United States, 916 A.2d 922 (D.C. 2007), and Veney v. United States, 929 A.2d 448 (D.C. 2007). Dissenting Op. ¶¶ 55, 57, 60-62. Bullcoming addressed facts considerably different from those in the case before us. Bullcoming held it to be error to admit, through the testi-mony of a “surrogate,” a forensic laboratory report that included a determination of the defendant’s blood alcohol content that had been completed by a non-testifying analyst. Bullcoming, 131 S. Ct. at 2713-16. Here, Mr. Hightower independently formed the opinion to which he testified. He was not a surrogate.43 The dissent cites to the text at foot-note 1 in Bullcoming. Dissenting Op. ¶ 56. The footnote describes to some degree the standard testing protocol for gas chroma-tography. The text is a general statement that says that “[s]everal steps are involved in the gas chromatograph process, and human error can occur at each step.” Bullcoming, 131 S. Ct. at 2711. Here, the process is a spectrophotometer process, and the only human error possibly at issue is whether

the surface upon which the substance was placed may not have been cleaned and may have contaminated the substance and the test causing the produced graph not to match the proven methamphetamine graph. If contamination had occurred, the tested sub-stance presumably would not have matched the proven graph of methamphetamine. The dissent also cites footnote 7 in Bullcoming, Dissenting Op. ¶ 56, which indicates that had the analyst who actually completed the laboratory report testified, defense counsel could have raised questions as to the analyst’s proficiency, the care he took in performing the work, and his veracity. Bullcoming, 131 S. Ct. at 2716 n.7. In the present case, the only question that defense counsel might have raised could have been whether Ms. Nardoni properly cleaned the equipment’s surface. Bullcoming is not precedent or con-trolling Supreme Court case law requiring a determination that Defendant was denied his right of confrontation under the facts of this case.44 The dissent’s reliance on Roberts and Veney, Dissenting Op. ¶¶ 60-62, both DNA cases, is unhelpful. First, these two cases, from one court and decided within months of one another, do not represent Supreme Court case law, and the dissent cites no other circuit courts that agree with the analyses in these cases. Second, these cases predate Williams, Bullcoming, and Melendez-Diaz. It would require a full-scale, separate analysis here as to how the analyses and results in those cases would have been affected by the Supreme Court’s recent confrontation jurisprudence. In fact, Williams can be read to express the view that for confrontation purposes, in a DNA case, it should not be necessary to have all of the various analysts testify. See Williams, 132 S. Ct. at 2228 (noting that “[i]f DNA profiles could not be introduced without calling the technicians who participated in the preparation of the profile, economic pressures would encourage prosecutors to forgo DNA testing and rely instead on older forms of evidence, such as eyewitness identification, that are less reli-able”). Third, a careful analysis of Roberts and Veney will show that they are distinguishable on their facts. And, fourth, Veney neither analyzed nor reached a conclusion as to whether the testifying analyst’s testimony led to a violation of the defendant’s confronta-tion rights. Veney assumed a violation and proceeded to decide the case on the ground that no plain error occurred. Veney, 929 A.2d at 469. Further, a careful review of Williams requires two conclusions: one, it does not support the dissent’s view that Defendant’s confrontation rights were violated; and two, for the reasons stated in this Majority


Opinion, Williams is more reasonably read to support our result.45 Finally, the dissent over-simplifies and incorrectly asserts our positions in this Majority Opinion. We do not believe that had the State “been allowed to introduce the chart into evidence as [Ms. Nardoni’s] ‘report’ through Mr. Hightower, Defendant’s confrontation rights would have been vio-lated.” Dissenting Op. ¶ 58. To the contrary, as explained in this Opinion, viewed through a Crawford lens and carried forward in Wil-liams, Ms. Nardoni’s participation in the testing process bore no resemblance to the abuses at which the Confrontation Clause is directed. See Crawford, 541 U.S. at 50-51; Williams, 132 S. Ct. at 2292. Also, as we have stated, even if the spectrograph itself had been admitted into evidence instead of having simply been referred to by Mr. Hightower, because it was not a “testimonial statement,” its admission would not have violated Defendant’s confrontation rights. See Crawford, 541 U.S. at 50; Williams, 132 S. Ct. at 2242, 2244; Moon, 512 F.3d at 361-62. To the extent the dissent frames our analyses as anything to the contrary, Dissenting Op. ¶ 58, the dissent is mistaken.CONCLUSION46 For the foregoing reasons, we affirm Defendant’s convictions.47 IT IS SO ORDERED. JONATHAN B. SUTIN,

Judge

I CONCUR:CELIA FOY CASTILLO, Chief JudgeMICHAEL E. VIGIL, Judge (concurring in part, dissenting in part).

VIGIL, Judge (concurring in part, and dissenting in part).48 I concur in the suppression issue dis-position, but respectfully dissent in regard to the confrontation clause. 49 The Sixth Amendment directs: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]” Crawford holds that the right of confrontation protected by the Sixth Amendment applies to “testimonial” out-of-court statements. 541 U.S. at 51. For the following reasons, I conclude that the test results performed by Ms. Nardoni were

admitted as substantive testimonial evidence at Defendant’s trial and that Defendant was deprived of his right to cross-examine Ms. Nardoni in violation of his constitu-tional right of confrontation under the Sixth Amendment.1 Since my colleagues in the majority disagree, I dissent.50 Crawford does not set forth a compre-hensive definition of what constitutes a “tes-timonial statement.” Rather, Crawford sets forth various formulations of the “core class of ‘testimonial’ statements” to which the confrontation right extends. Id. One such formulation is “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial[.]” Id. at 52 (internal quotation marks and citation omitted).51 In this case, Officer Clay seized the evidence from Room 102 that was used to convict Defendant. The evidence included a spoon and a plastic bag, both of which contained an unknown white crystalline substance, and they were sent to the State forensic laboratory in Hobbs for analysis. The evidence was collected in a criminal case for possession of a controlled substance, the evidence was sent to the State forensic laboratory for the express purpose of proving that it contained a controlled substance, and using the results of that test in a criminal prosecution to prove an essential element of the crime against Defendant. The laboratory test results were therefore clearly statements “that were made under circumstances which would lead an objective witness reasonably to believe that the statement[s] would be avail-able for use at a later trial[.]” Id. (internal quotation marks and citation omitted). As such, the laboratory test results constitute “testimonial” out-of-court statements un-der the Confrontation Clause of the Sixth Amendment. 52 To answer the question before us requires that we determine what the results of an infrared spectrophotometer test con-sist of. Thus, I begin with the science and technology on which the infrared spectro-photometer test is based.

The Fourier Transform Infrared Spectrophotometer (FTIR) was developed from the base technol-ogy of an Infrared Spectrometer

(IR) which was first discovered at the turn of the century. Infrared radiation refers to the wavelengths of light that are just beyond the color red in the visible spectrum of light. Infrared radiation is absorbed by various materials in different ways. This variance in absorption is measurable by sensors contained within an IR and an FTIR as in-frared radiation is passed through a sample of material. The traditional IR was little more than a prism disbursing light.The FTIR expanded upon the IR technology with a two[-]way mir-ror device which splits the single beam of infrared light into two beams—passing one beam through the sample of material and then putting the two beams back to-gether. The reunited beam of light now has different characteristics than it originally did based upon the absorption of various wave-lengths of light by the unknown sample of material. A complex mathematical equation (named a Fourier Transform) is then ap-plied to the wavelengths in order to separate out the intensity of each independent wavelength. The computer within the FTIR then produces a graphical representation of those wavelengths which can be compared visually and with com-puter aids against graphs produced by known substances.

People v. Roraback, 666 N.Y.S.2d 397, 399 (N.Y. Sup. Ct. 1997), aff’d 668 N.Y.S.2d 781 (N.Y. App. Div. 1998); see People v. Bartee, 814 N.E.2d 238, 241 (Ill. App. Ct. 2004) (explaining that the infrared spec-trophotometer works by sending a beam of infrared light onto the unknown sample, and because different drugs, and different molecules in general, absorb infrared light at different wavelengths and degrees, the ma-chine produces a chart that can be compared to charts of known standards to identify the unknown substance); Cole v. State, 835 A.2d 600, 605 (Md. 2003) (stating that the infrared spectrophotometer produced

1 The majority asserts, “there is a lack of preservation.” Majority Op. ¶ 41. Respectfully, I disagree. Even the State acknowledges in its answer brief that when Defendant objected to Mr. Hightower rendering an opinion about the evidence, “Defendant argued Mr. Hightower’s opinion testimony would violate his right of confrontation because Mr. Hightower was not the analyst who had placed the evidence on the spectrophotometer and Mr. Hightower did not have firsthand knowledge of the chain of custody from the time the evidence left the Roswell Police Department.” This was sufficient to preserve the issue for our review. See State v. Griffin, 2003-NMCA-051, ¶ 5, 130 N.M. 595, 28 P.3d 1136 (“The purpose of the preservation requirement is twofold: (1) that the trial 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.” (internal quotation marks and citation omitted)).


a graphical representation of an infrared spectrum generated by the tested unknown substances that was substantially similar to the spectrum generated by a “library” test result of a known substance (internal quota-tion marks omitted)); State v. Lee, 593 A.2d 235, 236-37 (N.H. 1991) (“The IR spec-trophotometer operates by focusing a beam of radiant light on the substance. It then measures the amount of energy absorbed, and graphs the energy spectrum emitted. Each substance has a unique graph pattern of energy peaks and valleys. By comparing this pattern with the graph of a ‘known’ substance, the expert can evaluate whether the substances are the same.”). Although not as detailed, Mr. Hightower’s testimony about the test conducted in this case is consistent with these descriptions of the test.53 Thus, there is one infrared spectropho-tometer test which consists of two essential component parts. First, an infrared beam of light is focused onto a sample of an un-known substance. This results in a graphical pattern of energy peaks and valleys which is reported on a graphical chart produced by the machine because different substances absorb infrared light at different wavelengths and degrees. Second, the graphical chart of the unknown substance produced by the machine is compared to a library of graphi-cal charts of known substances (reference charts), and when there is a match between the charts, a conclusion can be made about what the unknown substance is. The first part of the test was performed by Ms. Nar-doni, who did not testify, and the second part was performed by Mr. Hightower, who did testify. Further, the analysis undertaken in the second part of the test by Mr. Hight-ower is only valid if the work performed in the first part was properly performed by Ms. Nardoni.54 As the forensic scientist who per-formed the first part of the test, Ms. Nardoni was required to take measures to ensure that the machine obtained an accurate graphi-cal representation of the wavelengths of

the unknown substance. Mr. Hightower testified that to insure there is no cross-contamination with the unknown substance being tested, safeguards must be manually performed for each test: (1) only one case is tested at a time so that substances from other cases are not all out at one time; (2) the person doing the test must make sure all of the lab area is cleaned before any future test is performed; and (3) the surface where the material is placed inside the spectropho-tometer must be cleaned before each test is performed. However, Mr. Hightower was unable to testify whether these safeguards were performed by Ms. Nardoni, and he could not comment on whether any other required steps to insure a valid result were performed by her, “because I didn’t see those tests.”2

55 Thus, this case is similar in one mate-rial respect to Bullcoming. In Bullcoming, a forensic laboratory report setting forth the defendant’s blood-alcohol content (BAC) was completed and signed by the analyst who tested the defendant’s blood using a gas chromatograph machine. 131 S. Ct. at 2710-11. The gas chromatography pro-cess entails inserting vials of the suspect’s blood into the gas chromatograph machine which then produces a printed graph along with calculations representing a software-generated interpretation of the data. Id. at 2711 n.1. The results are then recorded by the analyst on the forensic laboratory report. Id. 56 The Bullcoming Court noted that “[s]everal steps are involved in the gas chromato-graph process, and human error can occur at each step.” Id. at 2711. The Court added that while the state had presented testimony that an accurate BAC measurement merely entails looking at the machine and recording the results, “the matter is not so simple or certain” because the analyst “must be aware of, and adhere to, good analytical practices and understand what is being done and why.” Id. at 2711 n.1. The Supreme Court further observed, “Errors that occur in any

step can invalidate the best chromatographic analysis, so attention must be paid to all steps” and that “93% of errors in laboratory tests for BAC levels are human errors that occur either before or after machines analyze samples.” Id. (internal quotation marks and citation omitted). At footnote 7, the Su-preme Court added that the testimony of the analyst who performed the test under oath “would have enabled Bullcoming’s counsel to raise before a jury questions concerning [his] proficiency, the care he took in performing his work, and his veracity.” Id. at 2716 n.7.57 Mr. Hightower could not present any testimony or evidence of what Ms. Nardoni did, how she did it, or why. All that Mr. Hightower had was the graphic chart which the spectrophotometer machine produced as a result of her actions. Mr. Hightower then told the jury that in his opinion, the known reference graph pattern of metham-phetamine matched the graph pattern of the unknown substance which Ms. Nardoni produced. 58 It seems clear, and the majority does not appear to dispute, that if Ms. Nardoni had dated and signed the chart of the un-known substance produced by the machine, and the State had been allowed to introduce the chart into evidence as her “report” through Mr. Hightower, Defendant’s con-frontation rights would have been violated. See id. at 2709-10, 2717-18; Melendez-Diaz, 557 U.S. at 307-11. Nevertheless, the major-ity concludes that no confrontation violation occurred because the chart itself was not introduced into evidence. However, this overlooks the fact that without the chart produced by Ms. Nardoni, Mr. Hightower had nothing to compare the reference chart of known methamphetamine to. Moreover, Mr. Hightower testified that the chart of the unknown substance produced by Ms. Nar-doni’s operation of the infrared spectropho-tometer was identical to the known reference graphic chart of methamphetamine. The end result, therefore, was that the chart produced by Ms. Nardoni’s work was considered as

2 The majority asserts that “the record has only testimony regarding one safeguard” which consists of cleaning the surface of the spectrophotometer, Majority Op. ¶ 41; that “the only human error possibly at issue is whether the surface upon which the substance was placed may not have been cleaned,” Majority Op. ¶ 43; and that “the only question that defense counsel might have raised could have been whether Ms. Nardoni properly cleaned the equipment’s surface.” Id. These assertions are refuted by the actual testimony. During Mr. Hightower’s testimony a note was sent by the jury asking about cross contamination. The court then asked the following questions, and Mr. Hightower answered as follows:

Q. Mr. Hightower I have few questions for you. A. Yes sir. Q. Has there ever been a time where cross-contamination occurred? A. We have several preventive measures against that, and to my knowledge no, there’s never been a time we only do, all we do one case at a time so we don’t have all the cases out at once and we make sure our lab area is clean before any future cases are done and in the case of the infrared spectrophotometer the material is placed right on it. It’s cleaned before the next sample and a background is actually run before to make sure that it is clean and, if it wasn’t cleaned, you would actually be able to see it on the examining surface and the test wouldn’t proceed so, to my knowledge, no.


substantive evidence. Applicable case law leads me to conclude that a constitutional confrontation violation resulted.59 I first note that the case law addressing whether the work of a non-testifying expert has been admitted and considered as sub-stantive evidence in a jury trial is extremely limited. The majority fails to cite to any applicable authority, and I have only found two cases, both of which predate Melendez-Diaz, Bullcoming, and Williams.60 In Roberts v. United States, 916 A.2d 922, 925 (D.C. 2007) (per curiam), a supervisory DNA analyst who did not ac-tually conduct the testing testified that the defendant’s DNA matched DNA taken from the victim’s clothing. The testing consisted of three parts: a serologist who conducts tests on material for the presence of blood, semen, or other biological fluids suitable for DNA analysis; a PCR/STR technician who prepares test samples for DNA-typing and operates the instrument that actually determines the DNA types found in the samples; and an analyst who interprets the data produced by the DNA-typing instru-ment and memorializes his conclusions in a report. Id. at 937. The testifying supervisory analyst did not perform any of these tests but nevertheless testified that the opinions he was testifying to were his own because he went through the case as if it were his own and came to his own conclusions and inter-pretations. Id. at 937-38. While the written report of the non-testifying analyst was not introduced into evidence, the testifying su-pervisory analyst referred to it from time to time in his testimony. Id. at 938. Thus, the prosecution conceded that some of the test results on which his opinion was based “were offered as substantive evidence,” and the court concluded that the defendant “was er-roneously denied the right to cross-examine witnesses whose conclusions formed part of the DNA evidence against him.” Id. at 939.61 Similarly, in Veney v. United States, the prosecution’s expert testified that the

defendant’s DNA matched DNA found on various articles of the victim’s clothing. 929 A.2d 448, 468 (D.C. 2007), modified by 936 A.2d 809 (D.C. 2007). She based her conclusion on data generated by founda-tional tests on the clothing conducted by two other scientists who did not testify. Id. One scientist tested the clothing for blood and semen, and the second operated a machine that performed a PCR/STR analysis which resulted in a computer-generated graph produced by the machine. Id. at 468-69. While the testifying expert used her own interpretation of the DNA evidence, she “made references to the serology tests and the data produced by the operation of a DNA-typing instrument, both carried out by other scientists on the team[.]” Id. at 469. Thus, the court concluded, the foundational test results were arguably offered as substan-tive evidence, and assuming a constitutional violation, the court proceeded to determine whether plain error resulted from admission of the evidence. Id. at 469; 936 A.2d at 810; see also Gardner v. United States, 999 A.2d 55, 61 (D.C. 2010) (stating that Veney con-cluded that the foundational test results were offered as substantive evidence because the testifying expert referred to them). 62 Veney and Roberts are directly on point. In the case before us, Mr. Hightower testi-fied that he referred to the graphic chart of the unknown substance produced by Ms. Nardoni’s operation of the infrared spectro-photometer and that the graphic chart of the unknown substance matched the reference graphic chart of methamphetamine. Ma-jority Op. ¶ 3. Mr. Hightower’s testimony that the two charts are the same resulted in the chart of the unknown substance be-ing admitted before the jury as substantive evidence against Defendant. Stated another way, the result of Ms. Nardoni’s work (the graphic chart of the unknown substance) was placed in evidence for the truth of the matter asserted—that the graphic chart resulting from her work is identical to a reference

chart produced by methamphetamine (the known substance). Thus, while the piece of paper which itself depicted the chart was not introduced into evidence, the informa-tion contained on the chart was. However, Defendant was not given an opportunity to cross-examine Ms. Nardoni, the forensic scientist who performed the part of the in-frared spectrophotometer test which resulted in that chart. 63 The majority also concludes that the spectrophotometer graph generated by the machine is not a “statement” and therefore it “was not a testimonial statement.” Major-ity Op. ¶ 26. In support of this conclusion, the majority relies on Moon, 512 F.3d at 361-62, which states, “Yet the instruments’ readouts [from an infrared spectrometer and a gas chromatograph] are not ‘statements’, so it does not matter whether they are ‘testimonial.’ ” Majority Op. ¶ 26. Respect-fully, I disagree, as it seems well settled that assertions of fact generated by a computer are considered as hearsay statements that must qualify as a hearsay exception to be admissible. See Rule 11-801(C) NMRA (defining hearsay as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted); Roark v. Farmers Group, Inc., 2007-NMCA-074, ¶¶ 24-29, 142 N.M. 59, 162 P.3d 896 (concluding that a computer-generated document is admissible as a business record exception to the hearsay rule); State ex rel. Elec. Supply Co. v. Kitchens Constr., Inc., 106 N.M. 753, 756, 750 P.2d 114, 117 (1988) (concluding that computer data compila-tions may be construed as business records that are admissible as an exception to the hearsay rule under Rule 11-803 NMRA). In his dissent in United States v. Washington, 498 F.3d 225, 233 (4th Cir. 2007), Judge Michael cites to numerous cases3 in stating, “Courts consistently consider computer-generated assertions of fact as hearsay that are admissible only under one of the exceptions

Q. Is the evidence and I believe it says, other substance or your substance side by side during testing?A. That, the . . . the evidence, the items possibly could be side by side like I said case wise, there would be no other cases open at this . . . besides this case right here. So, yes there are times when you line up your vials and you will . . . you will do the items to . . . . They’ll be side by side but as far as any other cases, no.Q. If a machine can give a false, positive, or negative, is there a way to do a manual test and was that performed. Was one performed?A. The manual test uh . . .Q. And maybe I need to make it clearer, and it appears to be two parts to the question. And, I’ll just quote it. “A machine can give false, positive, or negative. Is there a way to do a manual test and was one performed?”A. There is . . . . I think . . . . There’s a manual test on the instrument, um that we test the standard that’s part of our weekly test. I’m not sure if that’s what you’re asking. There are other manual tests as far such as color tests and stuff like that. Those are performed um but, I really can’t testify to that, because I didn’t see those tests. So, I can testify to this data, since I wasn’t there to see any other color tests or anything like that I can’t comment on those.

3 “United States v. Blackburn, 992 F.2d 666 (7th Cir. 1993) (computer printouts of lensometer readings); United States v. Enterline, 894 F.2d 287 (8th Cir. 1990) (computer report identifying vehicle as stolen); United States v. Baker, 855 F.2d 1353 (8th Cir. 1988)


to the hearsay rule.” I also agree with Judge Michael that although test results may be computer-generated, if they are generated with the assistance and input of a technician or scientist, they must be attributed to the technician or scientist. Id.4 This seems to be implicit in Bullcoming when the Supreme Court concluded that although there was evidence that the analyst who tested the defendant’s blood merely looked at the gas chromatography machine and recorded the results on a report into evidence, admission of the report violated the defendant’s right of confrontation because the analyst who filled out the report did not testify. 131 S. Ct. at 2710-11 & n.1.64 The unknown substance in this case was tested so the results could be used against Defendant in a criminal prosecution against him. The results clearly constituted a testi-monial statement and without testimony from the person performing the test, inad-missible under the Confrontation Clause. That was the factual backdrop and result in Bullcoming, Melendez-Diaz, and Craw-ford. See Bullcoming, 131 S. Ct. at 2717; Melendez-Diaz, 557 U.S. at 310; Crawford, 541 U.S. at 68. 65 Moreover, Williams is of no assistance to the result reached by the majority here. Williams was a bench trial without a jury in which an expert witness in forensic biology and forensic DNA analysis testified that in her opinion, DNA profiles produced by two separate tests matched. 132 S. Ct. at 2230-31. The first DNA profile was provided by a test conducted by Cellmark Diagnostic Laboratory (Cellmark) of vaginal swabs taken from a rape victim before the defen-dant or anyone else was under suspicion for the rape. Id. at 2229. The second DNA profile was provided by a test conducted by the state police lab from a sample of the defendant’s blood that was taken after he was arrested on an earlier unrelated charge.

Id. The analyst who performed the test at the state police lab testified at trial, but no one from Cellmark testified. Id. at 2229-30. The Cellmark report itself was not admitted into evidence, and the expert did not quote or read from the report or identify it as the source of any of her opinions. Id. at 2230. The United States Supreme Court had no trouble in concluding that neither test report was a “testimonial statement” under the Confrontation Clause because neither one was made when the defendant was a target of the rape investigation, and thus not made for the primary purpose of accusing a targeted individual. Id. at 2242-44. With-out a “testimonial statement” there was no constitutional confrontation violation. Id. On the other hand, the statement before us in this case is testimonial. Further, because the expert in Williams testified that it was a commonly accepted practice in the scientific community for one DNA expert to rely on the records of another DNA expert, that Cellmark was an accredited crime lab and that she and experts in her field regularly relied on the protocols used in this case, id. at 2229-30, the United States Supreme Court concluded the expert testimony was admissible under the Federal Rules of Evi-dence. Id. at 2233-35. See Fed. R. Evid. 703 (stating that an expert may base an opinion on facts or data “that the expert has been made aware of or personally observed,” and “[i]f experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted”). New Mexico’s counterpart to the federal rule is Rule 11-703. However, in this case, the State failed to lay a foundation to allow Mr. Hightower to express an opinion based on the part of the test performed by Ms. Nardoni. Even if it had, the objection based on the Confrontation Clause would remain. Finally, the United States Supreme

Court concluded, because this was a bench trial there was no danger that the fact finder improperly considered inadmissible hearsay evidence. Williams, 132 S. Ct. at 2236. On the other hand, the majority in Williams also conceded that the dissent’s argument to the contrary “would have force” if the defendant had been tried by a jury. Id. This case, unlike Williams, was tried to a jury. 66 Finally, I disagree with the majority that Mr. Hightower gave his conclusions based on his independent evaluation of Ms. Nardoni’s work product. Majority Op. ¶ 39. Because an infrared spectrophotometer test is performed in two distinct parts, and Mr. Hightower could not evaluate whether Ms. Nardoni properly performed the first part of the test, he was in fact used as a “mere conduit” to present her testimonial hearsay evidence to the jury. Melendez-Diaz notes that confrontation and cross examination are designed to “weed out not only the fraudulent analyst, but the incompetent one as well” and notes that “[s]erious de-ficiencies have been found in the forensic evidence used in criminal trials.” 557 U.S. at 319. Those concerns continue.5 We have no evidence that Ms. Nardoni was either fraudulent or incompetent, but if such was the case, it would escape detection if, as the majority holds, the results of her work could simply be parroted by a witness such as Mr. Hightower who had no knowledge of whether she followed proper protocols necessary for a valid test result. 67 Unlike my colleagues in the majority, I conclude that a testimonial statement (the graphic chart) of a witness (Ms. Nardoni) was admitted into evidence in violation of Defendant’s right under the Confrontation Clause of the Sixth Amendment because Defendant was unable to cross-examine Ms. Nardoni. I therefore dissent. MICHAEL E. VIGIL, Judge

(laboratory analyses of controlled substances); United States v. DeWater, 846 F.2d 528 (9th Cir. 1988) (breathalyzer test result); United States v. Hardin, 710 F.2d 1231 (7th Cir. 1983) (computer-generated graph of data collected by law enforcement); United States v. McKinney, 631 F.2d 569 (8th Cir. 1980) (blood test results); State v. Madorie, 156 S.W.3d 351 (Mo. 2005) (breathalyzer test result); City of Helena v. Hoy, 248 Mont. 128, 809 P.2d 1255 (1991) (same).” 4 On the other hand, if the computer-generated assertion is produced without any human assistance or input, it cannot be considered a person’s assertion. See United States v. Hamilton, 413 F.3d 1138, 1142 (10th Cir. 2005) (noting that the computer-generated header information that accompanied an image on the internet was not a hearsay statement because it was automatically generated by the com-puter without the assistance or input of a person); United States v. Khorozian, 333 F.3d 498, 506 (3d Cir. 2003) (concluding that the transmission information on a faxed document was not a hearsay statement because it was automatically generated by the fax machine). Washington, 498 F.3d at 233 (Michael, J., dissenting). 5 Peter Jamison, SFPD Crime Lab’s DNA Evidence Could Be Tainted by Concealed Mistakes, SF Weekly, Dec. 15, 2010, available at http://www.sfweekly.com/2010-12-15/news/sfpd-s-troubled-crime-lab-more-evidence-of-screwups-and-coverups/; Eugenie Samuel Reich, Boston Scandal Exposes Backlog, Nature, Oct. 9, 2012, available at http://www.nature.com/news/boston -scandal-exposes-backlog-1.11561; David Boeri, State Lab Chemist Told Police She Intentionally Falsified Test Results,WBUR, Sept. 27, 2012, available at http://www.wbur.org/2012/09/27/annie-dookhan-statement.

http://www.sfweekly.com/2010-12-15/news/sfpd-s-troubled-crime-lab-more-evidence-of-screwups-and-coverups/

http://www.nature.com/news/boston

http://www.wbur


Certiorari Not Applied For



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

and Standard of ReviewCivil Procedure: Estoppel; Limitation of Actions; and Summary Judgment

Government: MunicipalitiesProperty: Trespass

Torts: Notice; and Tort Claims Act

SUSAN YURCIC,Plaintiff-Appellant,

versusCITY OF GALLUP, GALLUP FLYING SERVICE, and MOLZEN-CORBIN & ASSOCIATES, P.A.

Defendants-Appellees,and

JOHN DOE CONTRACTOR,Defendant.

No. 30,786 (filed January 24, 2013)

APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTYGRANT L. FOUTZ, District Judge

opinion

J. Miles hanisee, Judge

1 Susan Yurcic (Plaintiff ) appeals the district court’s grant of summary judgment based upon the statutes of limitations ap-plicable to her lawsuit for damages caused by a flood retention pond located adjacent to her building. Plaintiff argues that disputed material facts exist as to when Plaintiff knew or should have known about the injuries to her property and existence of her claims against Defendants. Alternatively, Plaintiff argues that her property incurred separate

CODY K. KELLEYCHARLOTTE L. ITOH

KELLEY LAW OFFICESAlbuquerque, New Mexico

for Appellant

LYNN ISAACSONMASON & ISAACSON, P.A.

Gallup, New Mexicofor Appellee

City of Gallup

CHARLES A. PHARRISCASSANDRA R. MALONEKELEHER & MCLEOD, P.A.

Albuquerque, New Mexicofor Appellee

Gallup Flying Service

KEVIN M. SEXTONJAIME R. KENNEDY

MONTGOMERY & ANDREWS, P.A.Albuquerque, New Mexico

for Appellee Molzen-Corbin & Associates, P.A.

injuries, and each new injury had its own discovery date and period of limitation. For reasons explained below, we affirm in part, reverse in part, and remand to the district court.I. BACKGROUND2 Plaintiff and Johnna Yurcic (a former plaintiff in this case and Plaintiff ’s late husband, who died during the pendency of this case) owned property with a build-ing located next to the Gallup airport. In 1998, a retention pond (the pond) was dug directly next to Plaintiff’s property to address flooding and drainage concerns on the airport property. The pond has neither

an impermeable liner nor an automatic pumping system. Since its construction, the pond has often filled with water and has overflowed following rainstorms. No efforts have ever been made to pump or drain the pond. Subsequently, water has remained in the pond for long periods of time, seeping into the ground.3 In the years following the pond’s construction, the Yurcics’ building began exhibiting signs of damage to the founda-tion, walls, roof, and floors. On May 12, 2008, the Yurcics filed a complaint for nuisance, negligence, and damages against the City of Gallup (the owner of the air-port), Gallup Flying Service (the airport operator), Molzen-Corbin and Associates, P.A. (the designer of the pond), and a John Doe contractor (the unknown contractor who constructed the pond). In 2010, the City of Gallup (the City), Gallup Flying Service, and Molzen-Corbin (collectively, Defendants) jointly moved for summary judgment premised upon expiration of the applicable statutes of limitations. De-fendants argued that, as early as 1998 but no later than 2003, the Yurcics had notice that the pond was damaging their property and that they had a potential claim against Defendants. Defendants respectively con-tended that because a two-year statute of limitations applies to claims against the City and a four-year statute of limitations applies to claims against the other defen-dants, the Yurcics’ 2008 lawsuit was barred in its entirety because the lawsuit was not brought within either requisite period of prescription. 4 In response, Plaintiff asserted that evi-dence established the existence of disputed material facts as to whether she had notice of the damage and the potential claim against Defendants before the statutes of limitations ran. Plaintiff also argued that summary judgment was inappropriate because her property suffered successive injuries from the pond’s seepage, for which new statutes of limitations accrued under Valdez v. Mountain Bell Telephone Co., 107 N.M. 236, 239, 755 P.2d 80, 83 (Ct. App. 1988) (holding that the plaintiff could sue for successive seepage injuries caused by a utility pole, even though the statute of limitations expired on his initial claim, if the pole could be removed or the nuisance could be abated at a reasonable cost, or if the extent of the damages were not necessarily ascertainable when the plaintiff purchased the property). Following briefing by the parties and a hearing on Defendant’s mo-tion, the district court granted the motion. Plaintiff now appeals.


II. STANDARD OF REVIEW5 “An appeal from the grant of a motion for summary judgment presents a question of law and is reviewed de novo.” Montgomery v. Lomos Altos, Inc., 2007-NMSC-002, ¶ 16, 141 N.M. 21, 150 P.3d 971. “Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a mat-ter of law.” Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. “On appeal from the grant of summary judgment, we ordinarily review the whole record in the light most favorable to the party opposing summary judgment to determine if there is any evidence that places a genuine issue of material fact in dispute.” City of Albuquerque v. BPLW Architects & Eng’rs, Inc., 2009-NMCA-081, ¶ 7, 146 N.M. 717, 213 P.3d 1146. “However, if no material issues of fact are in dispute and an appeal presents only a question of law, we apply de novo review and are not required to view the appeal in the light most favorable to the party opposing summary judgment.” Id. “We are mindful that summary judgment is a drastic remedial tool which demands the exercise of caution in its application, and we review the record in the light most favorable to support a trial on the merits.” Woodhull v. Meinel, 2009-NMCA-015, ¶ 7, 145 N.M. 533, 202 P.3d 126 (internal quotation marks and citation omitted).III. DISCUSSIONA. Disputed Material Facts Exist as

to Whether Plaintiff Filed Her Complaint Within the Four-Year Statute of Limitations

6 Plaintiff contends that disputed mate-rial facts exist as to whether the statute of limitations expired prior to her filing the complaint against Defendants. We first address the applicable statutes of limita-tions and then review Plaintiff’s arguments regarding the existence of disputed facts. 7 Pursuant to NMSA 1978, Section 37-1-4 (1880), a four-year statute of limitations generally applies to claims “brought for injuries to property.” Plaintiff concedes and we agree that a four-year statute of limita-tions generally applies to this suit under this statute. But Defendants argued below and continue to argue on appeal that a two-year statute of limitations applies to the City under NMSA 1978, Section 41-4-15 (1977) of the Tort Claims Act. In its order granting summary judgment, the district court did not specifically address whether it applied a two- or four-year statute of limitations to Plaintiff’s claims against the City. Nonethe-less, we conclude that, as a matter of law, the two-year statute of limitations applies

to claims brought against the City. 8 Section 41-4-15(A) states that “[a]ctions against a governmental entity [must be] commenced within two years after the date of occurrence resulting in loss, injury or death[.]” In Cole v. City of Las Cruces, 99 N.M. 302, 305, 657 P.2d 629, 632 (1983), our Supreme Court expressly stated that a city is a governmental entity “because of its legal status as a local public body and as a political [subdivision] of the state.” (altera-tion in original) (internal quotation marks and citations omitted). Pursuant to Cole, the City of Gallup likewise is both a public body and political subdivision of the state. Thus, it is clearly a governmental entity, and the two-year statute of limitations applies to Plaintiff’s claim against it.9 Knowing the applicable periods of limitation, we move on to discuss the key issue in this case: does evidence conflict as to when the existence of notice to Plaintiff commenced the periods of limitation? “[I]n actions for injuries to . . . property, the cause of action shall not be deemed to have accrued until the . . . injury . . . complained of, shall have been discovered by the party aggrieved.” NMSA 1978, Section 37-1-7 (1880). “[U]nder the discovery rule, the statute of limitations begins when the plain-tiff acquires knowledge of facts, conditions, or circumstances which would cause a rea-sonable person to make an inquiry leading to the discovery of the concealed cause of ac-tion.” Gerke v. Romero, 2010-NMCA-060, ¶ 10, 148 N.M. 367, 237 P.3d 111 (internal quotation marks and citation omitted); see Wilde v. Westland Dev. Co., Inc., 2010-NMCA-085, ¶ 18, 148 N.M. 627, 241 P.3d 628 (“For purposes of determining when the cause of action accrues, discovery is defined as the discovery of such facts as would, on reasonable diligent investigation, lead to knowledge of [the] fraud or other injury.” (alteration in original) (internal quotation marks and citation omitted)). This means that “the statute of limitations is not tolled because a claimant does not have knowledge of the full extent of injury, but that the time period begins to run when the claimant has knowledge of sufficient facts to constitute a cause of action.” Gerke, 2010-NMCA-060, ¶ 10 (citation omitted). We subsequently refer to the standard set forth in the dis-covery rule, which requires knowledge of facts, conditions, or circumstances which would cause a reasonable person to make an inquiry leading to the discovery of the cause of action, as “inquiry notice.” See TRW Inc. v. Andrews, 534 U.S. 19, 30 (2001) (stating that certain events would place the plaintiff on “inquiry notice, and the discovery rule

would trigger the limitations period at that point, only if a reasonable person in [the plaintiff’s] position would have learned of the injury in the exercise of due diligence.” (internal quotation marks omitted)); Rhine-hart v. Nowlin, 111 N.M. 319, 328, 805 P.2d 88, 97 (Ct. App. 1990) (“Whatever puts a party upon inquiry is sufficient ‘no-tice’ and the party has a duty to inquire or he will be chargeable with all the facts.”).10 “Historically, the courts of this state have characterized the application of the discovery rule as a jury question, particularly when conflicting inferences may be drawn.” Williams v. Stewart, 2005-NMCA-061, ¶ 16, 137 N.M. 420, 112 P.3d 281. “As a general rule, issues as to whether a claim has been timely filed or whether good cause exists for delay in filing an action are ques-tions of fact, and such issues only become issues of law when the facts are undisputed.” Durham v. Sw. Developers Joint Venture, 2000-NMCA-010, ¶ 44, 128 N.M. 648, 996 P.2d 911. “Where there are disputed questions of material fact as to whether a plaintiff is barred by the statute of limita-tions, these questions are to be decided by a jury.” Medina v. Fuller, 1999-NMCA-011, ¶ 22, 126 N.M. 460, 971 P.2d 851 (altera-tion, internal quotation marks, and citation omitted).11 In granting summary judgment, the district court determined that Plaintiff had sufficient notice of facts constituting a cause of action against Defendants at the time of at least one of three instances of notice argued by Defendants. In their motion to dismiss, Defendants asserted that Plaintiff acquired inquiry notice of the cause of action first in 1998, when the pond was constructed, second in 2001, and third in 2002 or 2003. Each instance of notice asserted by Defendants occurred in excess of four years from filing the complaint. We analyze the evidence presented by the par-ties below to determine whether there are any disputed material facts as to whether Plaintiff was or should have been on notice of a claim against Defendants at the time of each asserted instance.12 Defendants first argued that sometime in 1998, Plaintiff noticed that “the northeast corner of the Yurcic Building had some structural-type cracks in the masonry, the slab had some cracks in it, and the corner of the building was sinking.” Defendants sup-ported their argument with testimony from Pat Mataya, a contractor who remodeled the building in 1998. In a deposition, Mataya testified that Johnna Yurcic knew of and was concerned about the above described structural-type cracks in the masonry and


foundation of the building. He added that Johnna Yurcic expressed concerns that the pond was causing some of the problems with the building. To rebut this evidence, Plaintiff presented testimony of Bob Witte, a former tenant of Plaintiff’s building. Prior to his initial occupation of the building in March 1998, Witte examined the premises and found no noticeable problems with the exterior or interior structure of the building at that time. Witte also testified that he first noticed problems with the building’s exterior in 2001. We conclude that this conflicting testimony regarding the presence or absence of visible signs of building dam-age presents a question of fact as to whether there was any visible structural damage to the building in 1998 that would have then placed Plaintiff on inquiry notice of a cause of action against Defendants. Moreover, reasonable jurors listening to this conflicting testimony could disagree about the veracity of Mataya’s testimony or the timing of Ma-taya’s conversation with Johnna Yurcic about the pond. It would therefore be improper for the district court to have granted summary judgment on the basis of the 1998 alleged acquisition of notice. 13 Next, Defendants argued that Plain-tiff had inquiry notice of a claim against Defendants when Witte reported a crack in the floor tiles of the building in 2001. Defendants stated and Plaintiff does not contest that in 2001, “Witte noticed [and reported to Johnna Yurcic] that the tiles laid during the 1998 [r]emodel were separating and that there was a quarter-inch crack in the floor that ran the entire length of the Yurcic building.” Plaintiff argues that this fact alone is legally insufficient to cause a reasonable person to make an inquiry lead-ing to the discovery of the cause of action against Defendants.14 In district court, Defendants did not offer any proof that this crack would lead a reasonable person to inquire as to the pond’s deteriorative effect on the building’s foundation. Due to the absence of evidence within the record linking the appearance of the crack with the nearby pond, we are unable to eliminate contrary explanations for this crack as a matter of law. In fact, Mataya’s testimony attributed the crack to a cause other than the pond. In response to Defendants’ question regarding the crack, Mataya explained that the crack “might have just been a control joint. . . . [W]hen they pour the [concrete] slab, sometimes they’ll have a control joint to separate the slabs, or the[y are] saw cut.” Because the crack in the tile floor might have been caused by an extrinsic source, such as a control joint,

and there was then no evidence specifically linking the crack to the pond, we conclude that mere knowledge of the existence of the crack in 2001 was legally insufficient to place Plaintiff on inquiry notice of a claim against Defendants.15 Lastly, relying on testimony from Witte, Defendants argue that in 2002 or 2003, Johnna Yurcic knew of the combi-nation of structural damage and saturated ground sufficient to have acquired inquiry notice of the claim against Defendants. Witte initially testified that in 2002 or 2003, he noticed and then informed Johnna Yurcic about a crack in the foundation of the northeast corner of the building, where the ground was “mushy.” Witte described the damage as a “stair step crack” that extended ten feet on either side of the northeast cor-ner of the building. Witte testified that he notified Johnna Yurcic of the crack and told him that he believed the pond was the cause of the building’s damage. Based on that conversation, Johnna Yurcic sent a person to inspect the crack shortly thereafter.16 In response, Plaintiff countered that this conversation did not occur until 2004, and therefore a genuine issue of material fact exists as to whether Plaintiff had notice of the damage prior to May 12, 2004 (more than four years before filing this case). Plain-tiff cited Witte’s own subsequent testimony during the same deposition, where Witte clarified that he noticed the crack in the northeast corner of the building sometime after appearing at a city council meeting to express his concerns about mosquitos breed-ing in the pond. Witte stated that he noticed the foundational crack “[a]nywhere from six months to a year” after the city council meeting. When pressed for a greater level of specificity as to the timing of the notify-ing conversations, Witte responded that his “time-frame on this” was unclear as to the precise date. Plaintiff argued below and continues to assert on appeal that the city council meeting took place in June 2003. Yet neither Defendants nor Plaintiff provided evidence as to when the city council meeting in question took place.17 Because of the express uncertainty of Witte’s recollection, combined with the parties’ inability to ascertain with greater precision the date on which the city council meeting took place, we conclude that Witte’s testimony is inconclusive as to precisely when, within the window of time between 2002 and 2004, he noticed and reported to Johnna Yurcic the damage to the northeast corner of the building. Because this last of the asserted grounds for summary judgment was also premised upon what are actually

disputed material facts, it too fails to fac-tually establish that Plaintiff had inquiry notice in excess of four years from when the Yurcic complaint was filed. 18 Because material disputed facts exist about when Plaintiff acquired a sufficient level of inquiry notice as to the existence of any claim assertable against Defendants, summary judgment as to Gallup Flying Service and Molzen-Corbin was improper. We therefore reverse the district court’s order as to those Defendants. B. Plaintiff Had Notice of the Claims

Against the City More Than Two Years Before Filing

19 Also based upon the foregoing discus-sion of evidence, it appears that Plaintiff acquired inquiry notice of the claim against the City more than two years before the Yurcic lawsuit was filed. Defendants’ evi-dence establishes that sometime in 2004 or earlier, Johnna Yurcic received notice that the foundation on the northeast side of the building was substantially cracking, that the ground around it was saturated with water, and that his tenant, Witte, by then believed the pond to be the cause of the damage. The only arguments Plaintiff makes to rebut Defendants’ contentions about notice of the moistened ground and the crack in the building’s northeast corner is (1) that the notice occurred sometime within a year after June 2003, the date on which Plaintiff alleges the city council meeting took place; and (2) that she personally—distinct from her husband Johnna Yurcic—never had notice of damage to the building until 2006. 20 First, the facts of which Witte notified Johnna Yurcic by June 2004 placed Plaintiff on inquiry notice more than three years be-fore the suit was brought. Unlike the earlier, more questionable evidence of the crack in the floor tiles, this latter evidence provided ample indicia of a causal nexus between the pond’s saturation of the ground and the building’s worsening structural damage. Evidence of the foundation’s twenty-foot-long stair step crack, surrounded by soggy ground, and the tenant’s communication with Johnna Yurcic that he believed the pond to be causing the foundational damage was sufficient to notify Plaintiff of both (1) serious structural damage requiring further investigation, and (2) a causal link between the pond and the injury to Plaintiff’s prop-erty. See generally Palumbo v. Roberti, 839 F. Supp. 80, 85 (D. Mass. 1993) (holding that inquiry notice was satisfied where the plaintiff had knowledge both of oil stored in the nearby neighboring building and of damage to goods in her building caused by oil seepage); Redland v. Tharp, 498 P.2d


1240, 1242 (Wyo. 1972) (concluding that the plaintiffs were on notice of their claim regarding seepage “when the area of [the] plaintiffs’ land became so boggy that farm machinery, vehicles, and equipment became stuck”).21 Second, to the extent Plaintiff argues that she did not individually gain inquiry notice of the damage until 2006, we con-clude that the requirement of diligence as a co-owner of the visibly damaged prop-erty warrants enforcement of the statute of limitations against her. Under the discovery rule, “the statute of limitations begins to run when the plaintiff knows or, with reasonable diligence should know, of his injury and its cause.” Gerke, 2010-NMCA-060, ¶ 12; see McNeill v. Burlington Res. Oil & Gas Co., 2008-NMSC-022, ¶ 37, 143 N.M. 740, 182 P.3d 121 (“In New Mexico, a cause of action arises when the plaintiff discovers or with reasonable diligence should have dis-covered that a claim exists.” (internal quota-tion marks and citation omitted)); Williams v. Stewart, 2005-NMCA-061, ¶ 12, 137 N.M. 420, 112 P.3d 281 (stating that “[t]he discovery rule provides that the cause of action accrues when the plaintiff discovers or with reasonable diligence should have discovered that a claim exists” (internal quotation marks and citation omitted)); Milwaukee Area Vocational Technical & Adult Educ. Dist. v. U.S. Steel Corp., 847 F.2d 435, 440 (7th Cir. 1988) (stating that “the discovery rule is an objective standard that does not protect those plaintiffs who sleep on their rights”); H. F. Wilcox Oil & Gas Co. v. Diffie, 186 F.2d 683, 697 (10th Cir. 1951) (concluding that an action brought by the plaintiff, the part-owner of a mine, against his co-owner for conversion was barred by the statute of limitations where the plaintiff failed to exercise diligence by examining his co-owner’s records, or asking the co-owner for a report regarding the subject mine); Martin v. Esponge, 388 So. 2d 128, 129 (La. Ct. App. 1 Cir. 1980) (stating that in the context of a leasing agreement, “a co-owner acts not only for himself but also as the agent of his other co-owners” (internal quotation marks and citation omitted)). Here, it is clear that Johnna Yurcic, Plaintiff’s husband and co-owner of the property, discovered the damage no later than when it was reported to him by his tenant, Witte. If Plaintiff had been reasonably diligent as a co-owner, she would have, at a minimum, communicated with her co-owner or tenant regarding the status of her property. The assertion that Plaintiff did not engage in communications regarding the seepage and damage, and the absence of her actual knowledge of it,

does not absolve Plaintiff of her duty to be reasonably diligent in discovering the injury and cause. 22 Thus, the claims against the City are time barred unless Plaintiff can succeed under her theory that each successive injury gave rise to a new cause of action with its own discovery date and period of limitation. We note that this theory bears the potential to also affect Plaintiff’s claim with regard to the other Defendants. C. Summary Judgment Was Improper

Under Valdez 23 Plaintiff also contends that summary judgment was improper because successive injuries occurred to the property due to the pattern of ongoing seepage and, as a result, under Valdez, separate causes of action ac-crued with each new injury to the property. Plaintiff therefore asserts that, under Valdez, her claims for successive injuries arising within the statute of limitations are not barred. We must determine whether under Valdez, Plaintiff’s injuries constitute separate causes of action with their own statutes of limitation. We note that if Plaintiff can only succeed in bringing her suit under the suc-cessive injury theory established by Valdez, her recovery is limited to those injuries in-curred within the respective two- and four-year statutes of limitations. McNeill v. Rice Eng’g & Operating, Inc., 2006-NMCA-015, ¶ 29, 139 N.M. 48, 128 P.3d 476 (stating that, “[a]lthough . . . some jurisdictions set the cause of action accrual date for a claim for damages for all injuries from the continuing trespass to be the date of the last injury[, under Valdez, t]he accrual date is the date of each particular injury which, for an intermittent injury, is the date of that discrete injury, or for a continuous injury, each new day”). 24 In Valdez, a property owner sued a public service company for improperly maintaining a telephone pole near a drain-age ditch on the south side of the plaintiff’s property, which caused water to back up onto and seep into the owner’s land. 107 N.M. at 237-38, 755 P.2d at 81-82. Within two or three years of purchasing his home, the plaintiff observed that “the land on the south side of his home was constantly damp.” Id. at 238, 755 P.2d at 82. Almost a decade after purchase, the plaintiff noticed that walls inside his home were cracking and was notified by his insurance company that the cracks were caused by seepage. Id. Sev-eral years after the initial wall cracking, the foundation on the south side of his house began sinking, cracking, and falling apart. Id. Under the facts of Valdez, it appeared that the plaintiff knew, well beyond the ap-

plicable statute of limitations on his initial claim, that his property had suffered damage as a result of water seepage. Id. On appeal we considered, as a matter of first impression, whether a cause of action can accrue with every new injury to the plaintiff’s property or whether the plaintiff’s complaint was time-barred because the statute of limitations had already run on the first injury caused by the recurring seepage. Id.25 After examining case law from other states dealing with this issue, we held that, when the “nuisance is of permanent charac-ter, and its construction and continuance are necessarily an injury, the damage is original, and . . . the statute of limitations begins to run upon the construction of the nuisance.” Id. at 240, 755 P.2d at 84 (internal quotation marks and citation omitted). On the other hand, we concluded that the plaintiff in Valdez could recover for successive injuries from a temporary structure, which we de-fined as either “a permanent structure which is not per se injurious” but which becomes injurious under certain, temporary condi-tions, or a structure that “could possibly be easily removed at a reasonable expense.” Id. In other words, if the nuisance is permanent and therefore necessarily injurious, Plaintiff would not be able to recover if the statute of limitations has run on her initial claim because subsequent causes of action are not created by subsequent injuries. But, if the nuisance is temporary, Plaintiff could sue for later injuries caused by the same seepage, as the statute of limitations would run anew with subsequent injuries. We defined “[a] permanent structure or nuisance [a]s one that may not be readily remedied, removed or abated at a reasonable expense, or one of a durable character evidently intended to last indefinitely, costing as much to alter as to build.” Id. at 239, 755 P.2d at 83. In sum, the nuisance is temporary if either the structure can be removed at a reasonable cost or the nuisance can be remedied or abated at a reasonable cost.26 This Court in Valdez explained that, “[the p]laintiff alleges that the utility pole . . . is a permanent structure which is not per se injurious, but becomes so with ex-cessive rain or snow. As such, the nuisance is temporary.” Id. at 240, 755 P.2d at 84. We also came to the conclusion that “the utility pole . . . could probably be easily removed at a reasonable expense, and is, therefore, a temporary structure.” Id. We held that, “[i]n either case, successive actions may be brought because each new injury allows a new cause of action to accrue.” Id. Additionally, we went on to hold that “successive recoveries should be allowed


following each injury, where the improve-ment is negligently constructed and the damage to plaintiff’s property could not be reasonably calculated at the time of the completion of the construction thereof.” Id. With these principles in mind, we con-cluded that the Valdez plaintiff could sue for successive injuries caused by the utility pole, even though the statute of limitations expired on his initial claim, because “the nuisance . . . is abatable[,] the injuries are recurring[,] the extent of the damages were not necessarily ascertainable when plaintiff purchased the property[,] and the nuisance is not necessarily injurious.” Id.27 In applying Valdez to the case at bar to determine whether Plaintiff can sue for successive injuries, we identify the pertinent factual inquiries to be: (1) whether the pond can be removed at a reasonable cost, (2) whether the seepage can be remedied or abated at a reasonable expense, and (3) whether the damages caused by the seepage on Plaintiff’s property could have been ascer-tainable when the pond was built. Neither party below produced evidence to address these issues. 28 On appeal, Defendants nonetheless contend that summary judgment was proper because “Plaintiff presented no evidence be-low to demonstrate that the retention pond was a temporary structure such that the rule in Valdez applied.” Defendants support this assertion with a citation and parenthetical indicating that when Defendants have met their burden of demonstrating a prima fa-cie case in support of summary judgment, Plaintiff “bears the burden of demonstrating the existence of specific facts to support a trial on the merits.” Implicit in this assertion is that Defendants have successfully made a prima facie case for summary judgment. Although Defendants correctly state the standard for shifting burdens of proof, we conclude that they failed to make a prima facie showing below. 29 “In the civil litigation context, the statute of limitations defense is generally an affirmative defense[.]” State v. Kerby, 2007-NMSC-014, ¶ 13, 141 N.M. 413, 156 P.3d 704. When asserting an affirmative defense as grounds for summary judgment, the “[d]efendant carrie[s] the burden of making a prima facie showing as to each element of the definition [of the defense].” Solorzano v. Bristow, 2004-NMCA-136, ¶ 15, 136 N.M. 658, 103 P.3d 582 (discussing the moving party’s burden in seeking summary judgment against the plaintiff on the af-firmative defense of suicide); see Romero v. Philip Morris Inc., 2010-NMSC-035, ¶ 10, 148 N.M. 713, 242 P.3d 280 (stating that

the moving party has the initial burden of establishing a prima facie case for summary judgment). Prima facie case is defined as “[a] party’s production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favor.” Black’s Law Dictionary 1310 (9th ed. 2009); see Hyden v. Law Firm of McCormick, Forbes, Caraway & Tabor, 115 N.M. 159, 163, 848 P.2d 1086, 1090 (Ct. App. 1993) (stating that a prima facie showing is defined as “such evidence as is sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted” (internal quotation marks and citation omitted)). 30 Since the statute of limitations is Defendants’ affirmative defense and since Defendants are the moving parties, they have the burden of producing evidence regarding every element of that defense. Here, the trier of fact cannot infer the necessary facts to conclude that the suit is time barred without Defendants produc-ing sufficient evidence to address the issues pertinent to a Valdez determination. Thus, in order to obtain summary judgment on the statute of limitations affirmative defense, Defendants have the duty to produce suf-ficient evidence showing that the pond and seepage are permanent and that the damages were ascertainable at the time the pond was constructed. Valdez, 107 N.M. at 240, 755 P.2d at 84. Because Defendants failed to make the requisite prima facie case, Plaintiff bore no obligation to produce evidence to the contrary. 31 Defendants argue that Valdez does not apply to this case, in part because the injuries were not successive. We conclude there is abundant evidence to the contrary sufficient to create a disputed issue of mate-rial fact. In arguing otherwise, Defendants rely solely on testimony from Witte that the ground was “constantly wet.” First, this appears to misconstrue Witte’s testimony, in which he then discussed the character of the ground during monsoon season. Second, Plaintiff argued from the inception of this case that “[w]hen the pond is full due to precipitation[,] the water is not contained inside the Airport’s property . . . but instead the water migrates beneath the surface into the Yurcics’ property.” The record appears to provide support to this theory that the pond was only a nuisance when full, particularly during monsoon season. Moreover, the re-cord shows that there was a series of different injuries to the building: different cracks and damage developed in the foundation, walls, and ceiling over time. Lastly, it appears that Defendants misconstrue our case law regarding the characteristics of successive

injuries. In Valdez, the seepage caused the ground to be constantly damp, and such seepage resulted in a series of injuries, similar to those which manifested in the case at bar. See Valdez, 107 N.M. at 238, 755 P.2d at 82. Based on the standard exemplified in Valdez, Plaintiff appears to have incurred successive injuries. For these reasons, we conclude that at the very least, disputed material facts exist regarding whether the injuries were succes-sive.32 Defendants argue that because “John-na Yurcic was aware of specific damages to his property [between 1998 and 2003] and believed that the pond was to blame[,]” he cannot recover under the continuing wrong doctrine stated in Valdez. For support, Defendants cite out-of-state case law for the proposition that “the doctrine cannot be employed where the plaintiff’s injury is definite and discoverable, and nothing prevented the plaintiff from coming forward to seek redress.” See Tiberi v. Cigna Corp., 89 F.3d 1423, 1431 (10th Cir. 1996) (internal quotation marks and citation omitted). We disagree because first, as determined above, Defendants have yet to prove that prior to June 2004, Johnna Yurcic was or should have been aware of a definite injury caused by Defendants sufficient to constitute in-quiry notice. Second, Defendants appear to misconstrue the principle regarding definite and discoverable injuries, which was originally derived from Wilson v. Giesen, 956 F.2d 738, 743 (7th Cir. 1992). The court in Wilson explained that a definite and discoverable injury was one resulting from a tortious act which “caused direct damages that occurred at a certain point in time—resulting in immediate and direct injury . . . with consequential effects.” Id. (alteration in the original) (internal quota-tion marks and citation omitted). In the case at bar, the damages occurred gradually over a long period of time, in relation to the rise and fall of the pond water levels. There was no one specific point in time at which the building suddenly sunk into the soggy ground, breaking the foundation and crack-ing the building’s walls, floors, and ceiling. The injury was gradual and incremental, not immediate. Thus, the continuing wrong theory appears to be applicable to this case. 33 Arguing again that Valdez is inappli-cable, Defendants cite Colorado case law for the proposition that claims involving seepage arise when the property is first vis-ibly affected by the seepage. See Greene v. Green Acres Constr. Co., 543 P.2d 108 (Colo. App. 1975). We note that Greene is legally distinct from the present inquiry regarding successive injuries. Rather, it deals with


the initial discovery of the injury, which is a topic we have already dealt with above when analyzing the issue of when Plaintiff acquired notice of the Yurcic cause of action. Thus, we are unpersuaded by Defendants’ assertion that this case is more similar to Greene than Valdez. 34 Since Defendants failed to present sufficient evidence establishing that sepa-rate causes of action did not accrue with each ensuing injury to the property and therefore failed to demonstrate that Valdez is inapplicable here, summary judgment was improper. We thus reverse the district court on this ground as well.C. Plaintiff Failed to Preserve Her

Estoppel Argument35 Finally, Plaintiff argues the doctrine of equitable estoppel tolled the statute of limitations in this case. Yet Plaintiff never argued estoppel below. “To preserve an issue for review on appeal, it must appear that appellant fairly invoked a ruling of the trial court on the same grounds argued in the appellate court.” Woolwine v. Furr’s, Inc., 106 N.M. 492, 496, 745 P.2d 717, 721 (Ct.

App. 1987). The preservation rule “provides the lower court an opportunity to correct any mistake, . . . provides the opposing party a fair opportunity to show why the court should rule in its favor, and . . . creates a record from which this Court may make informed decisions.” State v. Lopez, 2008-NMCA-002, ¶ 8, 143 N.M. 274, 175 P.3d 942 (alterations in the original) (internal quotation marks and citation omitted). 36 Here, Plaintiff argues that she raised the issue below in her answer brief respond-ing to the motion to dismiss. Yet the answer brief merely stated in a footnote that “Plain-tiff also notes that she and Johnna Yurcic held off on filing their complaint while waiting for a response to the tort claims notice that they had filed in June 2007. A response was not received on behalf of the City of Gallup until September 2007.” We conclude that this footnote was insufficient to preserve the issue of estoppel for appellate review, as it never invoked a ruling on the issue from the district court, and it failed to alert Defendants to an opportunity to argue against estoppel below. As a result,

we have no record from which to render an informed ruling on the issue. We therefore decline to address Plaintiff’s estoppel argu-ment on appeal. See Andalucia Dev. Corp. v. City of Albuquerque, 2010-NMCA-052, ¶ 25, 148 N.M. 277, 234 P.3d 929 (“Appel-late courts will not consider issues that went unpreserved at the district court level.”).IV. CONCLUSION 37 We reverse the district court’s order of summary judgment because (1) disputed material facts exist as to whether the stat-ute of limitations barred Plaintiff’s initial claims against Gallup Flying Service and Molzen-Corbin, and (2) disputed material facts exist regarding whether separate causes of action accrued with each new injury to the property under Valdez. We remand to the district court for proceedings consistent with this Opinion.38 IT IS SO ORDERED. J. MILES HANISEE, Judge

WE CONCUR:CYNTHIA A. FRY, JudgeTIMOTHY L. GARCIA, Judge





Topic Index:Administrative Law and Procedure: Administrative Appeal;

Arbitrary and Capricious Actions; Hearings; and Standard of ReviewGovernment: Licensing

Torts: Licensees

NEW MEXICO BOARD OF DENTAL HEALTH CARE,Petitioner-Appellee,

versusLILLIAN P. JAIME, D.M.D.,Respondent-Appellant.


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

opinion

roderick t. kennedy, chief Judge

1 Petitioner New Mexico Board of Den-tal Health Care (Board) petitioned this Court for a writ of certiorari to the district court, arguing that the district court erred when it overturned the Board’s decision to discipline Respondent Lillian Jaime, D.M.D. We granted the petition to review the question of whether the district court’s decision was contrary to the Uniform Li-censing Act (ULA), NMSA 1978, Sections 61-1-1 through -33 (1957, as amended through 2003), insofar as the district court determined that the Board was required to give deference to the report issued by the Board’s hearing officer. See Rule 12-505(D)(2)(d)(ii) NMRA (providing that this Court may grant a petition for a writ of certiorari if, among other reasons, the district court’s decision conflicts with a statute). As we conclude that the district court’s decision was contrary to the terms of the ULA, we reverse.

GARY K. KINGAttorney General

Santa Fe, New MexicoMARY H. SMITH

Assistant Attorney GeneralAlbuquerque, New Mexico

for Appellee

PAUL J. KENNEDYARNE R. LEONARD

Paul Kennedy & AssociatesAlbuquerque, New Mexico

for Appellant

I. BACKGROUND2 After a patient of Jaime’s filed a com-plaint against her, the Board appointed a hearing officer to take evidence on the complaint. The hearing officer issued a report to the Board, finding no unprofes-sional conduct by Jaime and recommending that no disciplinary action be taken. The Board reviewed the report and the evidence presented during the hearing and reached the conclusion that the evidence did in fact demonstrate unprofessional conduct. The Board ordered Jaime to pay a fine, complete three hours of continuing education in eth-ics, and pay the costs of the administrative hearing. Jaime appealed to the district court, and the district court set aside the Board’s decision. It concluded that the Board’s de-cision was arbitrary and capricious in that it was improperly dismissive of the hearing officer’s report. This conclusion had two bases. First, because the hearing officer was the one to take testimony, it was the hear-ing officer who was in the best position to make determinations involving the weight and credibility of the evidence. Second, to the degree that the evidence gave rise to any conflicting inferences, it was the hearing of-

ficer who was in the best position to resolve those inferences. The district court relied on In re Bristol, 2006-NMSC-041, 140 N.M. 317, 142 P.3d 905, and Atlixco Coalition v. Maggiore, 1998-NMCA-134, 125 N.M. 786, 965 P.2d 370, both of which involved administrative procedures not governed by the ULA in reaching its conclusions. The Board petitioned this Court for discretion-ary review, and we granted the petition.II. DISCUSSION3 We review the question of whether the district court erred in its appellate capacity by conducting the same review of the ad-ministrative order as did the district court. See Rio Grande Chapter of Sierra Club v. N.M. Mining Comm’n, 2003-NMSC-005, ¶ 16, 133 N.M. 97, 61 P.3d 806 (stating that an appellate court reviewing a district court’s decision in its appellate capacity will “conduct the same review of [the] adminis-trative order as the district court sitting in its appellate capacity, while at the same time determining whether the district court erred in the first appeal”). That standard of review requires us to consider whether the Board’s decision was arbitrary and capricious, not supported by substantial evidence, or oth-erwise not in accordance with law. See § 61-1-17 (providing that a person entitled to a hearing under the ULA may obtain review of an adverse board decision pursuant to NMSA 1978, Section 39-3-1.1 (1999), which grants district courts appellate juris-diction to review agency decisions); see also § 39-3-1.1(D) (stating that a district court may set aside, reverse, or remand a board’s final order if it determines that “(1) the agency acted fraudulently, arbitrarily[,] or capriciously; (2) the final decision was not supported by substantial evidence; or (3) the agency did not act in accordance with law”). In determining whether there was substantial evidence to support the agency’s determination, we apply a whole record re-view. Bass Enters. Prod. Co. v. Mosaic Potash Carlsbad Inc., 2010-NMCA-065, ¶ 28, 148 N.M. 516, 238 P.3d 885. “Under whole record review, evidence is viewed in a light most favorable to upholding the agency’s determination, but favorable evidence is not viewed in a vacuum that disregards contravening evidence.” Id. We do not defer to the agency’s or the district court’s conclusions of law, which are reviewed de novo. See Rio Grande Chapter of Sierra Club, 2003-NMSC-005, ¶ 17. 4 The ULA provides the procedures that a professional licensing board must follow when initiating actions against a licensee. Hearings are conducted “either by the board or, at the election of the board, by


a hearing officer who may be a member or employee of the board or any other person designated by the board in its discretion.” Section 61-1-7(A). When a board appoints a hearing officer to preside over a hearing, the ULA specifies that the hearing officer is required to submit a report to the board containing findings of fact. Id. (providing that “[a] hearing officer shall, within thirty days after any hearing, submit to the board a report setting forth his findings of fact”). There is no statutory basis for a hearing offi-cer to provide conclusions of law or to make a recommendation regarding discipline. A board is not required to give deference to the hearing officer’s factual findings since, after the hearing officer’s report is submitted to the board, it is the board that is charged with the task of rendering a decision and providing the findings of fact and conclu-sions of law underlying that decision. See § 61-1-13(A) (“After a hearing has been completed, the members of the board shall proceed to consider the case and as soon as practicable shall render their decision . . . . In cases in which the hearing is conducted by a hearing officer, all members who were not present throughout the hearing shall familiarize themselves with the record, in-cluding the hearing officer’s report, before participating in the decision.”); see also § 61-1-16 (“The decision of the board shall contain findings of fact made by the board; conclusions of law reached by the board; the order of the board based upon these findings of fact and conclusions of law; and a statement informing the applicant or licensee of his right to judicial review and the time within which such review must be sought.” (emphasis added)). Thus, under the language of the ULA, it is clear that a board, and not any hearing officer it appoints, is responsible for all findings and conclusions, as well as for the ultimate decision regarding disciplinary action. 5 Our review of the ULA demonstrates that the district court erred in concluding that the Board acted arbitrarily and capri-ciously when it failed to defer to the hearing officer’s determination that Jaime’s conduct was not unprofessional and his recommen-dation that she should not be disciplined. The Board followed all procedures required by the ULA. The Board’s decision states that it reviewed the testimony, evidence, and exhibits presented to the hearing officer. It then made factual findings that included citations to the portions of the hearing tran-script and the exhibits that supported those findings. A review of the hearing transcript, when properly considered in the light most favorable to the Board’s decision, provides

substantial evidence to support these find-ings. 6 Nothing in the ULA suggests that the Board was limited in its ability to reach a different conclusion than did the hear-ing officer about whether or not the facts presented at the hearing constituted un-professional conduct. The ULA places the responsibility for making both findings of fact with the Board as a whole, not with an individual hearing officer. See § 61-1-13(A) (stating that it is a quorum of the board that renders a decision in the case); § 61-1-16 (stating that the board’s decision must be based on its findings of fact). Furthermore, the hearing officer is not permitted to make conclusions of law or recommendations regarding disciplinary action. See § 61-1-7(A) (calling upon a hearing officer only to make findings of fact). The board is a panel composed primarily of experts in the field of dentistry. See NMSA 1978, § 61-5A-8(A) (2003).

The board shall consist of five den-tists, two dental hygienists[,] and two public members. The dentists shall be actively practicing and have been licensed practitioners and residents of New Mexico for a period of five years preceding the date of appointment. The dental hygienist members shall be members of the committee and shall be elected annually to sit on the board by those sitting on the committee. The appointed public members shall be residents of New Mexico and shall have no financial interest, direct or indirect, in the professions regulated in the Dental Health Care Act.

Id. The ULA expressly permits board members to use their “experience, technical competence[,] and specialized knowledge” in evaluating the evidence before them. Section 61-1-11(C); see also Weiss v. N.M. Bd. of Dentistry, 110 N.M. 574, 583, 798 P.2d 175, 184 (1990) (stating that expert testimony is not required to support charges of a dentist’s unprofessional conduct where the board itself is composed primarily of ex-perts who are qualified to make a judgment about a dentist’s adherence to the standards of professional conduct). In conducting that evaluation, the statutory scheme entrusts board members as a group to call upon their collective knowledge and expertise to make findings and conclusions and to determine what, if any, disciplinary action is appropri-ate. This is particularly important where, as here, there is no evidence that the individual selected to serve as the hearing officer, who

is a retired judge and practicing attorney, had any particular knowledge of dentistry. The Board was entitled to reach its own conclusion about whether Jaime’s conduct was unprofessional, regardless of the hearing officer’s assessment of this issue. 7 Here, the Board concluded that a pre-ponderance of the evidence supported the determination that Jaime violated Regula-tion 16.5.16.10(B)(5) (06/14/2012) of the Administrative Code, which provides that a dentist commits unprofessional conduct when she fails “to advise the patient in simple understandable terms of the pro-posed treatment, the anticipated fee, the expectations of success, and any reason-able alternatives[.]” The factual findings on which this determination was based included the following:

6. At [the patient’s] June 20, 2007 appointment to finish his root scaling, and while he had been anesthetized and was sitting in the dentist’s chair for that procedure, [Jaime] told [the patient] that he needed the fillings replaced on [T]eeth [N]umbers 12 and 15. Although [the patient] objected, saying that he did not have the time before he had to return to work, [Jaime] told him it would only take [thirty] minutes, and [the patient] agreed to have the fillings replaced. 7. During this June 20, 2007 appointment, [Jaime] removed the fillings on [the patient’s T]eeth [N]umbers 12 and 15 by drilling out the decay . . . and grinding down both teeth so she could replace the fillings, [then] showed him pic-tures of these teeth, suggested that they be crowned[,] and explained that replacing the fillings as he had agreed that morning was not the best treatment. 8. [Jaime] did not tell [the patient] before she removed his two fillings from [T]eeth [N]umbers 12 and 15 that he might need crowns on those teeth instead of the replacement fillings he ex-pected. 9. While [the patient] was anesthetized and sitting in the dentist’s chair during his June 20, 2007 appointment, and after [Jai-me] had drilled the decay . . . and ground down [T]eeth [N]umbers 12 and 15 so she could replace his fillings, [Jaime] presented a Con-sent Form and a Treatment Plan


to [the patient] for the temporary crowns she would place that day. 10. [The patient] signed the June 20, 2007 Consent Form indicating “Changes in Treatment Plan” and “Crowns, Bridges and Caps” and . . . signed a Treatment Plan estimating the cost of the two crowns, after he had been anesthe-tized and was sitting in the dentist’s chair . . . and after his teeth were already ground down to remove his old fillings. 11. At [the patient’s] June 20, 2007 appointment to finish his root scaling, [he] had no oppor-tunity to refuse having temporary crowns placed that particular day on [T]eeth [N]umbers 12 and 15 until it was too late and his teeth had already been ground down.

We find nothing arbitrary or capricious in the Board’s expert conclusion that Jaime’s failure to discuss the possibility that her patient might need crowns rather than fillings or to inform him of the cost of the crowns prior to grinding his teeth down was a violation of Regulation 16.5.16.10(B)(5). 8 Although nothing in the ULA suggests that the Board is required to defer to the hearing officer’s findings of fact, and nothing in the ULA permits the hearing officer to

reach conclusions of law or to make disci-plinary recommendations, Jaime argues that the cases relied upon by the district court, involving other administrative procedures, indicate that deference to the hearing officer’s report was required in this case. However, the administrative procedures in those cases differ in significant respects from the procedures set forth in the ULA. For instance, In re Bristol involved a scheme for disciplining attorneys that required a hear-ing committee to take evidence and to issue not only findings of fact, but also conclu-sions of law and recommendations for disci-pline. 2006-NMSC-041, ¶¶ 2, 15-16; see In re Oppenheim, 2007-NMSC-022, ¶¶ 26-27, 141 N.M. 596, 159 P.3d 245 (relying on In re Bristol in a case involving bar admission). Similarly, Atlixco Coalition involved a regu-latory scheme that required a hearing officer to take evidence and then make a recom-mended decision. 1998-NMCA-134, ¶ 15. Regulations provided that the Secretary of the New Mexico Environment Department could modify or reject the recommended decision, but required the Secretary’s final order to set forth any reasons for taking such action. Id. In contrast to the procedures at issue in In re Bristol and Atlixco Coalition, where the hearing committee or officer was required to undertake a role similar to that of a district court—taking evidence, making

findings of fact and conclusions of law, and then providing a remedy—the ULA creates a much more limited role for a hearing of-ficer. Under the ULA, the hearing officer is only permitted to make findings, and even those findings need not be given deference by the board, as they are simply there to aid the board in making its own findings. See § 61-1-7(A) (requiring the hearing officer to make only findings of fact); § 61-1-13(A) (stating that it is a quorum of the board that renders a decision in the case); § 61-1-16 (stating that the board’s decision must be based on its findings of fact). Because the administrative procedures in In re Bristol and Atlixco Coalition differ from those set forth in the ULA, those cases are inapplicable.III. CONCLUSION9 The district court erred by conclud-ing that the Board acted arbitrarily and capriciously when it failed to defer to the hearing officer’s report. As this conclusion was contrary to the ULA, we reverse the district court. 10 IT IS SO ORDERED. RODERICK T. KENNEDY,

Chief Judge

WE CONCUR:JAMES J. WECHSLER, JudgeLINDA M. VANZI, Judge





Topic Index:Administrative Law and Procedure: Administrative Appeal

Appeal and Error: Standard of ReviewCivil Procedure: Estoppel; Final Order; and Mootness

Government: SubdivisionsProperty : Lis Pendens; and Subdivisions

ZUNI INDIAN TRIBE,Plaintiff-Appellant,

versusMCKINLEY COUNTY BOARD OF COUNTY COMMISSIONERS,

Defendant-Appellee,and

TAMPICO SPRINGS RANCH 3000, LLC,Intervenor-Appellee.


APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTYROBERT A. ARAGON, District Judge

opinion

linda M. vanzi, Judge

1 The New Mexico Subdivision Act (the Act), NMSA 1978, §§ 47-6-1 to -29 (1973, as amended through 2009), governs the subdivision review and approval process by counties. The appeals provision of the Act, Section 47-6-15(B), provides that a party adversely affected “by a decision of the board of county commissioners may appeal to the district court pursuant to the provisions of [NMSA 1978, §] 39-3-1.1 [(1999)]”—the statute governing administrative appeals. In this case, we address whether a county’s approval or disapproval of a preliminary subdivision plat application constitutes a final, appealable decision for purposes of Section 47-6-15(B) of the Act. We also decide whether a timely filed appeal from a

SAMUEL D. GOLLISSAMUEL D. GOLLIS,

ATTORNEY AT LAW, P.C.Albuquerque, New Mexico

JANE MARXJANE MARX,

ATTORNEY AT LAW, P.C.Albuquerque, New Mexico

for Appellee

JAMES JAY MASONMASON & ISSACSON, P.A.

Gallup, New Mexicofor Appellant

decision on a preliminary plat application is rendered moot simply because the county proceeded to approve the final plat applica-tion during the pendency of the appeal.2 We hold that a party adversely affected by a county’s decision on a preliminary plat application can appeal the decision to the district court and that this appeal, if timely filed, is not rendered moot by the county’s decision to approve the final subdivision plat application during the pendency of the appeal. Accordingly, we reverse the district court’s ruling to the contrary and remand for the district court to consider the merits.BACKGROUND3 On January 8, 2008, the McKinley County Board of County Commissioners (the County) approved a preliminary plat application submitted by Tampico Springs Ranch 3000, LLC (Tampico) for a proposed 490-home phased subdivision development.

On February 7, 2008, the Zuni Tribe (the Tribe) appealed the County’s approval of the preliminary plat application to the district court. Tampico filed a motion to intervene in the case, which the district court granted. 4 Shortly thereafter, the Tribe filed a mo-tion to stay enforcement of the County’s decision approving the preliminary plat ap-plication to prevent Tampico from proceed-ing further in the subdivision development process during the pendency of the Tribe’s appeal. See Rule 1-074(Q) NMRA (permit-ting the district court to stay enforcement of the agency decision under review). The district court denied the Tribe’s motion, and the County then proceeded to approve Tampico’s final plat application. 5 Subsequently, Tampico filed a motion to dismiss the Tribe’s appeal on two grounds, arguing that: (1) the district court lacked jurisdiction because the County’s decision on the preliminary plat application was not a final, appealable order; and (2) the Tribe’s appeal from the preliminary plat approval was rendered moot by the County’s approval of Tampico’s final plat application during the pendency of the appeal. The district court granted Tampico’s motion, finding that the Tribe’s appeal “puts forth a moot question and the action complained of does not constitute a final decision.” We granted the Tribe’s petition for writ of certiorari to review the district court’s ruling.STANDARD OF REVIEW6 The parties agree that this case presents pure questions of law, which we review de novo. See Santa Fe Pac. Trust, Inc. v. City of Albuquerque, 2012-NMSC-028, ¶ 10, 285 P.3d 595 (“Finality is a question of law we review de novo.”); Baber v. Desert Sun Mo-tors, 2007-NMCA-098, ¶ 9, 142 N.M. 319, 164 P.3d 1018 (providing that “[w]hether a lower court properly dismissed a case as moot presents a question of law, which we review de novo”). To the extent that this appeal requires this Court to interpret provisions of the Act, we also engage in de novo review. Hovet v. Allstate Ins. Co., 2004-NMSC-010, ¶ 10, 135 N.M. 397, 89 P.3d 69 (providing that “[s]tatutory interpreta-tion is a question of law, which we review de novo”).DISCUSSIONA. Finality7 The first issue we address on appeal is whether the County’s approval of a pre-liminary plat application is a final, appeal-able order within the meaning of Sections 47-6-15(B) and 39-3-1.1. The Tribe argues that the district court erred in concluding that a county’s approval or disapproval of a preliminary subdivision plat application


does not constitute a final decision that is appealable to the district court. Section 47-6-15(B) reads:

A party who is or may be adversely affected by a decision of the board of county commissioners may appeal to the district court pursu-ant to the provisions of Section 39-3-1.1.

(Emphasis added.) The Act does not define the term “decision” in Section 47-6-15(B), and here, the parties disagree as to whether a county’s approval or disapproval of a preliminary plat application is a decision from which an aggrieved party can seek judicial review. The Tribe contends that the County’s approval of Tampico’s preliminary plat application in this case constituted a “decision” under Section 47-6-15(B) of the Act and that this is a “final decision” within the meaning of Section 39-3-1.1. For the reasons that follow, we agree.8 In interpreting Section 47-6-15 of the Act, “we seek to give effect to the Legisla-ture’s intent, and in determining intent we look to the language used and consider the statute’s history and background.” Key v. Chrysler Motors Corp., 121 N.M. 764, 768-69, 918 P.2d 350, 354-55 (1996); see State v. Nick R., 2009-NMSC-050, ¶ 11, 147 N.M. 182, 218 P.3d 868 (stating that in interpret-ing statutes, “we examine the plain language of the statute as well as the context in which it was promulgated, including the history of the statute and the object and purpose the Legislature sought to accomplish” (internal quotation marks and citation omitted)). “We must take care to avoid adoption of a construction that would render the statute’s application absurd or unreasonable or lead to injustice or contradiction.” Id. (internal quotation marks and citation omitted).9 “The primary indicator of legislative intent is the plain language of the statute.” State v. Johnson, 2009-NMSC-049, ¶ 10, 147 N.M. 177, 218 P.3d 863. When a term is not defined in a statute, we must construe it, giving words “their ordinary meaning absent clear and express legislative intention to the contrary.” State v. Ogden, 118 N.M. 234, 242, 880 P.2d 845, 853 (1994). Although the term “decision” is not defined in the Act, it is ordinarily defined as “[a] judicial or agency determination after consideration of the facts and the law[.]” See Black’s Law Dictionary 467 (9th ed. 2009); see also Armijo v. Armijo, 77 N.M. 742, 744, 427 P.2d 258, 259 (1967) (defining “decision” as “a determination arrived at after consideration, an opinion formed, or a course of action decided upon”). As the Tribe points out, the review and approval

process for preliminary plats set forth in the Act requires a formal review process by a board of county commissioners or its delegate. See § 47-6-11. The Act specifically requires the subdivider to furnish docu-mentation of various matters, such as water availability and road access, along with its preliminary plat. Section 47-6-11(B). The Act requires the board of county commis-sioners to seek written input in the form of “opinions” from interested parties and various state entities, including the state engineer, the department of environment, and the department of transportation. Sec-tion 47-6-11(F). The Act further requires the board of county commissioners to hold a public hearing to “weigh these opinions [if all are favorable] in determining whether to approve the preliminary plat.” Section 47-6-11(G); see § 47-6-11(H) (describing the process to be followed where negative opinions are submitted by state agencies, tribes, or other interested parties). At the public hearing, the board of county com-missioners is required to “allow all interested persons a reasonable opportunity to submit data, views or arguments, orally or in writ-ing, and to examine witnesses testifying at the hearing.” Section 47-6-14(E). And finally, the Act provides that the board of county commissioners is to render its decision on the preliminary plat “within thirty days of the public hearing at a public meeting.” Section 47-6-14(F). In light of the thorough review and decision-making process set forth in the Act for preliminary plats, it is reasonable to conclude that the approval or disapproval of a preliminary plat application would constitute a “decision” under Section 47-6-15 based on the term’s ordinary meaning.10 In this case, the County’s approval of Tampico’s preliminary plat application was consistent with the foregoing statutory scheme. The approval was issued by the Board in the form of a written resolution with incorporated final findings and rec-ommendations submitted by the County’s Smart Growth Commission. This resolution followed written input from state agencies and other interested parties, including the Tribe, as well as a series of public hearings before the Smart Growth Commission regarding Tampico’s preliminary plat ap-plication. Tampico and the Tribe submitted proposed findings and recommendations following the hearings. The final findings and recommendations adopted in the resolution included consideration of sev-eral important aspects of the subdivision development and review process, such as water availability, liquid and solid waste

disposal, and access. Given the nature of the written resolution and the procedural history that preceded its passage, we agree with the Tribe’s argument that the resolu-tion constitutes a “decision” under Section 47-6-15. 11 In addition, the statutory history of Section 47-6-15 confirms that the Legisla-ture intended to provide for judicial review of a county’s approval or disapproval of a preliminary plat. In particular, we focus on the 1995 and 2005 amendments to the Act. See 1995 N.M. Laws, ch. 212; 2005 N.M. Laws, ch. 139, §§ 2-3. Prior to 1995, the Act did not delineate separate review and approval processes for preliminary and final plat applications. Instead, the earlier version of the Act provided a single overarching subdivision review and approval process for a “plat.” See, e.g., § 47-6-2(D) (1981) (defining plat); § 47-6-3 (1973) (describing certification requirement for plats); § 47-6-6 (1979) (providing filing requirement for plats); § 47-6-11 (1977) (detailing review and approval process for a type-one or type-two subdivision); § 47-6-15 (1973) (permitting appeals from a county’s approval or disapproval of a “subdivision plat”). 12 In 1995, the Legislature amended the Act substantially by separating the plat approval process into two distinct steps: the preliminary plat review process and the final plat review process. Specifically, the Legislature removed the broad defini-tion of “plat” in the Act and in its place inserted definitions for preliminary and final plats. See § 47-6-2(E), (F) (1995). The Legislature also amended the Act to provide distinct requirements for review and approval of preliminary and final plat applications. See, e.g., § 47-6-11 (1995) (describing preliminary plat approval pro-cess); § 47-6-11.3 (1995) (detailing final plat approval process); § 47-6-3 (1995) (describing requirements for final plats); § 47-6-4 (1995) (providing affidavit and acknowledgment requirements for final plats); § 47-6-6 (1995) (stating that ap-proved final plats shall be filed with the county clerk’s office and indicating that this requirement does not apply to preliminary plats). And among other changes, the Leg-islature further amended the Act to require the board of county commissioners of each county to adopt regulations setting forth the county’s requirements for preliminary and final subdivision plats. Section 47-6-9(A)(1). Thus, the 1995 amendment to the Act reflected a clear legislative intent to create a substantively and legally distinct two-step subdivision approval process, with a por-tion of the Act now specifically tailored


to address the preliminary plat review and approval process.13 Section 47-6-15, the appeals provi-sion of the Act at issue in this case, was also modified in 1995. Prior to 1995, Section 47-6-15(A) (1973) read:

Any party who is or may be ad-versely affected by a decision of the board of county commission-ers or its delegate in approving or disapproving a subdivision plat may appeal to the district court.

(Emphasis added.) Consistent with the changes made to other provisions of the Act in 1995, the Legislature amended this provision by replacing the language “a subdivision plat” with “preliminary or final plat.” 1995 N.M. Laws, ch. 212, § 16(A). Consequently, the language of Sec-tion 47-6-15(A) after the 1995 amendment expressly permitted appeals to the district court from a decision of the board of county commissioner’s on preliminary or final plat applications. However, the Tribe’s appeal from the County’s approval of Tampico’s preliminary plat application in this case arose after Section 47-6-15 was amended in 2005—when the Legislature removed the “approving or disapproving a preliminary or final plat” language from the provision. See § 47-6-15(B) (2005). As a result of the 2005 amendment, Section 47-6-15(B) now provides that “[a] party who is or may be adversely affected by a decision of the board of county commissioners may appeal to the district court.” Thus, while the 1995 version of Section 47-6-15 would have expressly permitted the Tribe’s appeal from the preliminary plat application approval, the current 2005 version of Section 47-6-15 no longer includes language expressly granting a statutory right of appeal from decisions on preliminary plat applications.14 The Tribe contends on appeal that the removal of the “preliminary or final plat” language from Section 47-6-15 reflects a leg-islative intent to “broaden . . . the universe of county commission decisions subject to appeal.” We agree with the Tribe’s argument based on other aspects of the 2005 amend-ment to the Act. The primary objective of the 2005 amendment was to allow board of county commissioners in certain class A counties to delegate subdivision review and approval of preliminary plats and final plats to an administrative officer or to the planning commission. See 2005 N.M. Laws, ch. 139, § 2(D); accord NMSA 1978, § 47-6-9(D) (2005). While prior versions of Section 47-6-15 had only permitted appeals to the board of county commissioner from “a decision of a delegate . . . in approving

or disapproving a final plat under sum-mary review,” the Legislature removed the qualifying language regarding final plats in 2005 to permit a much broader review, thereby allowing for appeals to the board of county commissioners from “a decision of a delegate.” Compare § 47-6-15(E) (1995) (emphasis added), and § 47-6-15(A) (1998), with § 47-6-15(A) (2005). Subsection A of Section 47-6-15 also provides that appeals to the district court are permitted from the board of county commissioners’ decision in an appeal from a delegate’s action. As we have noted above, the Legislature amended Subsection B at the same time by removing the language “approval and disapproval of preliminary and final plat.” See 2005 N.M. Laws, ch. 139, § 3; accord § 47-6-15(B) (2005). By removing the qualifying lan-guage from Subsection B, we conclude that the Legislature essentially confirmed that appeals from board decisions in delegation cases can be heard by district courts, thereby indicating a legislative intent to broaden the scope of appealable decisions.15 We reject Tampico’s argument that the removal of the “preliminary or final plat” language from Section 47-6-15(B) served to eliminate a statutory right of appeal from decisions involving preliminary plats. If we were to employ this reasoning, we would be pressed to conclude that appeals from final plats are also not appealable since the language concerning final plats was also removed from Section 47-6-15. Such a reading is untenable if one considers that one of the primary objectives of the Act is to set forth a two-step subdivision review and approval process. The appeals provision of the Act would seemingly be rendered meaningless if no statutory right of appeal existed for decisions on preliminary or final plats. See Int’l Ass’n of Firefighters v. City of Carlsbad, 2009-NMCA-097, ¶ 11, 147 N.M. 6, 216 P.3d 256 (“We seek to give meaning to all parts of the statute, such that no portion is rendered surplusage or meaningless.”). We are not persuaded that the Legislature intended such a result. See City of Deming v. Deming Firefighters Local 4521, 2007-NMCA-069, ¶ 23, 141 N.M. 686, 160 P.3d 595 (“We . . . do not give ef-fect to legislative intent by reading a statute in a way that would render it meaningless.”).16 Tampico also appears to argue that the approval or disapproval of a preliminary plat application does not constitute a “final decision” for purposes of Section 39-3-1.1, our administrative appeals statute, or Kelly Inn No. 102, Inc. v. Kapnison, 113 N.M. 231, 824 P.2d 1033 (1992), and its prog-eny. A “final decision” is defined in Section

39-3-1.1(H)(2) as “an agency ruling that as a practical matter resolves all issues arising from a dispute within the jurisdiction of the agency, once all administrative remedies available within the agency have been ex-hausted.” “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 No. 102, 113 N.M. at 236, 824 P.2d at 1038 (internal quotation marks and citation omitted). 17 The gist of Tampico’s argument ap-pears to be that a decision on a preliminary plat application is non-final because it does not dispose of all issues of law to the fullest extent possible. We are likewise not persuaded by this argument. Tampico offers no explanation as to why the County’s deci-sion to approve Tampico’s preliminary plat application did not dispose of all issues of law to the fullest extent possible. Although Tampico’s answer brief noted a number of conditions placed by the County on Tampico in the resolution approving the preliminary plat, Tampico failed to argue that these conditions somehow rendered the resolution non-final for purposes of Section 39-3-1.1. Tampico only argues that an approval of a preliminary plat is non-final because of the possibility that the final plat for the subdivision could later be denied by the board of county commission-ers. However, since the County went on to approve the final plat for the subdivision at issue in this case, we decline to address this issue further. See City of Sunland Park v. Harris News, Inc., 2005-NMCA-128, ¶ 50, 138 N.M. 588, 124 P.3d 566 (noting that an appellate court need not decide an issue that will have no practical effect on the current litigation and would answer only a hypothetical set of circumstances).18 Drawing on the plain language of Section 47-6-15 and its legislative history, we conclude that the Legislature intended to allow aggrieved parties the right to appeal decisions on preliminary plat applications to the district court. We hold that the district court erred in concluding that the Tribe could not appeal from the County’s resolu-tion approving Tampico’s preliminary plat application. We therefore reverse the district court’s ruling that the Tribe’s appeal was from a non-final decision.B. Mootness19 We next address the district court’s determination that the Tribe’s appeal from the preliminary plat approval “puts forth a moot question.” Although the district


court’s order did not state the underlying rationale for this decision, it appears that the district court was persuaded by Tam-pico’s argument below that the Tribe’s ap-peal was rendered moot due to the County’s approval of Tampico’s final plat application during the pendency of the Tribe’s appeal. We therefore address whether a timely filed appeal from a decision on a preliminary plat application is rendered moot because a board of county commissioners proceeded to approve the final plat application during the pendency of the preliminary plat ap-peal. 20 “As a general rule, this Court does not decide moot cases. When no actual controversy exists for which a ruling by the court will grant relief, an appeal is moot and ordinarily should be dismissed.” Republican Party of N.M. v. N.M. Taxation & Revenue Dep’t, 2012-NMSC-026, ¶ 10, 283 P.3d 853 (internal quotation marks and citation omitted). The Tribe argues that its appeal was not moot because, even though the final plat was approved, the errors it has alleged regarding the County’s approval of Tampico’s preliminary plat application remain a live controversy. The Tribe also contends that actual relief exists in this case and that by proceeding with the subdivision development process during the pendency of the Tribe’s appeal, Tampico bore the risk that the appeal could result in an unfavorable decision. In response to the

Tribe’s contentions, Tampico claims that the finality issue discussed above should govern the mootness dispute in this case. 21 We have already determined that the district court erred in determining that the preliminary plat approval was a non-final decision. Given our reversal on the finality issue, if the Tribe’s claims of error regarding the preliminary plat approval are meritori-ous, we conclude that the Tribe would be entitled to actual relief. Thus, the Tribe’s appeal is not moot. This is the case notwith-standing the fact that, following the denial of the Tribe’s motion to stay, the County proceeded to approve Tampico’s final plat application during the pendency of the Tribe’s appeal in the district court. Nothing in the Act prevents a subdivision developer from proceeding with the final plat review and approval process once a preliminary plat has been approved. However, where an ag-grieved party has timely filed an appeal from a decision on a preliminary plat application, the subdivision developer undertakes such action during the pendency of the appeal at his or her own risk. See City of Bowie v. Prince George’s Cnty., 863 A.2d 976, 978 (Md. 2004) (holding that “an applicant may proceed to seek final plat approval of a subdivision . . . during the time that the preliminary plat approval remains under judicial review, but the applicant undertakes such action at his own risk that the underly-ing preliminary approval may be invalidated

at a future time, thus, potentially voiding all subsequent governmental actions dependent on that approval”).C. Cancellation of Lis Pendens Notice22 As a final matter, we briefly address one remaining aspect of the district court’s ruling. We observe that the district court’s order dismissing the Tribe’s appeal also included language cancelling the notice of lis pendens on file with the County clerk’s office in this case.1 This court-ordered can-cellation of the lis pendens was premature and in error under existing New Mexico case law. We have previously held that a notice of lis pendens filed in an action continues “until expiration of the time for appeal or until final disposition of the case by the ap-pellate court.” Kokoricha v. Estate of Keiner, 2010-NMCA-053, ¶ 18, 148 N.M. 322, 236 P.3d 41; Salas v. Bolagh, 106 N.M. 613, 615, 747 P.2d 259, 261 (Ct. App. 1987). Therefore, the district court’s cancellation of the lis pendens was improper. CONCLUSION23 Based on the foregoing, we reverse the district court’s order of dismissal and remand for the district court to consider the merits of the Tribe’s appeal.24 IT IS SO ORDERED. LINDA M. VANZI, Judge

WE CONCUR:MICHAEL D. BUSTAMANTE, JudgeCYNTHIA A. FRY, Judge

1Because the record is silent as to whether the notice of lis pendens was actually cancelled as a result of the district court’s order, we can only speculate as to whether, following final plat approval, Tampico proceeded to sell lots in the subdivision to buyers who did not have notice of the Tribe’s appeal to this Court. See D’Antonio v. Crowder, 2011-NMCA-016, ¶ 11, 149 N.M. 420, 249 P.3d 1243 (observing that “a notice of lis pendens serves to give notice to any third partiescontemplating acquiring an interest in the property in question that title to the property is subject to ongoing litigation”).





Topic Index:Civil Procedure: Summary Judgment

Contracts: Breach; Estoppel; and Option AgreementProperty: Purchase Agreement

WILLIE GARCIA and VIOLA GARCIA, husband and wife,Plaintiffs-Appellants,

versusSONOMA RANCH EAST II, L.L.C.,

Defendant-Appellee.No. 30,920 (filed January 28, 2013)

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

opinion

JaMes J. Wechsler, Judge

1 In this contract dispute, Plaintiffs Wil-lie and Viola Garcia (the Garcias) executed an Option Agreement granting Defendant Sonoma Ranch East II, LLC or its designee (Sonoma Ranch) the option to purchase real property. When Sonoma Ranch failed to make a payment under the Option Agree-ment, the Garcias filed a breach of contract action seeking full payment of the sales price. The district court held that the failure of Sonoma Ranch to make a payment under the Option Agreement ended its obligations and any rights it possessed. The district court granted summary judgment to Sonoma Ranch. We affirm.FACTUAL AND PROCEDURAL BACKGROUND2 The complaint and the undisputed facts upon which the district court entered summary judgment indicate that the parties entered into the Option Agreement on or about April 26, 2006. Under the Option Agreement, Sonoma Ranch acquired an option to purchase a 25.121 acre tract of the Garcias’ real property. The term of the option was from April 26, 2006 until May 31, 2015. The consideration for the grant of the option was $750,000, with $150,000

JOSEPH M. HOLMESJOSEPH M. HOLMES, P.A.Las Cruces, New Mexico

for Appellants

JOSHUA L. SMITHLAWRENCE R. WHITE

MILLER STRATVERT, P.A.Las Cruces, New Mexico

for Appellee

payable within fifteen days and annual pay-ments of $100,000 plus six percent interest on the unpaid sum due. All principal sums paid were to be applied to the purchase price. The parties signed an escrow agree-ment and placed exchanged deeds with the escrow agent. Sonoma Ranch made the annual payment called for in the Option Agreement to the escrow agent in April 2007. On April 8, 2008, the escrow agent informed Sonoma Ranch of its annual pay-ment due April 26, 2008. Sonoma Ranch did not make the payment.3 The Option Agreement contained other terms pertinent to the parties’ argu-ments. During the term of the Option Agreement, it required Sonoma Ranch to pay ad valorem real estate taxes and assess-ments and the Garcias to remove any liens or encumbrances as requested by Sonoma Ranch; to cooperate with Sonoma Ranch in its actions to obtain annexation and sub-division approval; and to provide Sonoma Ranch access to the property.4 The district court granted Sonoma Ranch’s motion for summary judgment. It determined that the terms of the Option Agreement were clear and unambiguous, that the Option Agreement “was for an option to purchase real estate and was ter-minated upon default by” Sonoma Ranch, and that by “not making the payment,”

Sonoma Ranch ended its rights under the Option Agreement. The Garcias moved for reconsideration, alleging that Sonoma Ranch owed them the full amount of the consideration to acquire the option to pur-chase the real property because the Option Agreement did not provide for a different consideration if Sonoma Ranch elected to terminate the Option Agreement. The district court denied the motion for recon-sideration.5 The Garcias appeal, making arguments that we recast as follows: (1) that summary judgment was not proper because there is a genuine issue of material fact as to whether the parties’ agreement was an option; (2) that the district court erred in determining that the Option Agreement terminated upon Sonoma Ranch’s non-payment; (3) that there are other genuine issues of fact re-maining that preclude summary judgment; (4) that if the terms of the Option Agree-ment are clear and unambiguous, Sonoma Ranch owes them $750,000 for the grant of the option; and (5) that estoppel bars any claim that there are no bilateral obligations under the Option Agreement.THE AGREEMENT IN THIS CASE6 We initially discuss the agreement that underlies this appeal. The Garcias asserted in discovery and in their response in opposi-tion to the motion for summary judgment that they believed that they were selling their property to Sonoma Ranch under an install-ment purchase agreement, and they assert in their brief in chief that they “continue to be under the impression that they sold the property to Sonoma Ranch.”7 According to the Garcias, when they entered negotiations with Sonoma Ranch, David Steinborn, Sonoma Ranch’s repre-sentative, “insisted on preparing a written agreement to confirm” the offer he had made for the Garcias’ property. The parties then signed a document entitled Realtors Association of New Mexico Purchase Agree-ment - Vacant Land on February 7, 2006, by which the Garcias were to sell the real property to Sonoma Ranch for $750,000 with a down payment of $150,000 and a loan for $600,000. The Option Agreement and other documents were executed on or about April 26, 2006. The district court determined that “[t]he agreement between the parties was for an option to purchase real estate.”8 The Garcias contend that the district court erred in this determination and that questions of fact remain concerning whether the transaction was a purchase and sale instead of an option. They assert that the requirements of the agreement of estab-


lishing an escrow account and procuring title insurance are more consistent with a purchase and sale than an option and that inconsistencies in the document appear to indicate that the documents are incomplete. The Garcias have thus raised the issue of whether the parties intended a contract to purchase or an option to purchase. 9 “Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.” Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. A court may consider evi-dence concerning the making of a contract in order to determine whether the contract before it is unclear or ambiguous. C.R. An-thony Co. v. Loretto Mall Partners, 112 N.M. 504, 508-09, 817 P.2d 238, 242-43 (1991). Generally, if a contract is ambiguous, reso-lution of the ambiguity in the contractual interpretation is a factual question. See id. at 507, 817 P.2d at 241. However, in deter-mining whether “the parties’ expressions of mutual assent lack clarity” so as to present an ambiguity, “[i]f the evidence presented is so plain that no reasonable person could hold any way but one, then the court may interpret the meaning as a matter of law.” Mark V, Inc. v. Mellekas, 114 N.M. 778, 781, 845 P.2d 1232, 1235 (1993).10 The details of the agreements before us lead to the conclusion that there is no ambi-guity and that we may interpret their mean-ing as a matter of law. We first elaborate on these details. In February 2006, the parties entered into an agreement by using a Real-tors Association of New Mexico purchase agreement form. The agreement refers to the parties as “buyer” and “seller,” and, among other things, states the purchase price, estab-lishes the terms for closing, allocates closing costs, requires a survey/improvement loca-tion report and title insurance, and provides for an escrow account. Under the heading CASH OR FINANCING CONDITIONS AND OBLIGATIONS, the document states, “Real Estate Option. For terms, see attached addendum.” We are unable to lo-cate an addendum in the record on appeal. The only other reference to an option in the documents signed on February 7, 2006 is the hand-written word “Option” written after the title “Realtors[] Association of New Mexico Purchase Agreement—Vacant Land” on the real estate licensee disclosure document. Additionally, in addressing the date Sonoma Ranch would take possession, the parties marked a box entitled “Other,” rather than selecting the date of closing or the date of disbursement of the proceeds. No further explanation was included.

11 The Option Agreement, on the other hand, expressly states that it involves the grant of an option to purchase the property and uses the term “option” throughout. The parties are exclusively referred to as “Optionors” and “Optionee.” The Option Agreement, among other things, states the consideration for the grant of the option and the term of the option, restates the purchase price as $30,000 per acre, addresses liens and taxes that arise during the option period, and provides for an escrow account, title insurance, and allocation of costs. It provides for closing “within [twenty-five] days of the time that Optionee provides written notice of its intent to exercise the option granted by [the Option] Agreement.” It states that it “contains the complete and integrated agreement of the parties hereto and all previous agreements made by them are merged herein.”12 The parties’ February 2006 agreement expressed their original intent to enter the transaction. This intent was embodied in a purchase and sale agreement that also included evidence of an intent to create an option. At this point, the documentation of the parties’ intent was ambiguous. The parties then clarified their intent with the Option Agreement. The Option Agree-ment clearly states that it is the grant of an option. By necessity, the terms of the purchase and sale are included within the Option Agreement. See Ritchie v. Cordray, 461 N.E.2d 325, 327 (Ohio Ct. App. 1983) (stating that an option and a contract to sell are separate and independent, even though contained in a single document and that “the option is collateral to the main offer to sell”). Although the Garcias argue that the provisions for escrow and title insurance are more consistent with a purchase and sale, they do not explain the manner in which these provisions are so inconsistent with an option as to vitiate the creation of the option under the Option Agreement. 13 The Garcias’ strongest argument attacking the Option Agreement is its si-lence concerning the mechanism by which Sonoma Ranch could terminate its option. The Option Agreement provided only that Sonoma Ranch would pay $750,000 for the grant of the option, $150,000 within fifteen days of the execution of the Option Agreement and $100,000 plus interest in annual payments. To be sure, the Option Agreement could have more clearly stated the manner in which Sonoma Ranch would provide notice of its intent to not exercise the option. However, as a matter of law, this silence is overcome by the nature of an option agreement.

14 “Defined at its most basic level, an option is simply a contract to keep an offer open.” 1 Samuel Williston, A Treatise on the Law of Contracts § 5:15, at 1013 (Richard A. Lord ed., 4th ed. 2007). An option contract is unilateral in its character. Id. § 5:15, at 1016; Lake Shore Country Club v. Brand, 171 N.E. 494, 501 (Ill. 1930). It is an ir-revocable offer on the part of the optionor, which the optionee has the right to exercise in accordance with the terms of the option. Lake Shore Country Club, 171 N.E. at 501; 1 Williston, supra, § 5:16, at 1022. It does not bind the optionee. 1 Williston, supra, § 5:15, at 1016 (stating that an option binds the optionor, “but leav[es] the optionee free to either accept or not, at his or her whim”). By virtue of its unilateral character, an option to purchase is not a contract to purchase. Lake Shore Country Club, 171 N.E. at 501; 1 Williston, supra, § 5:16, at 1024-26.15 Based on the unilateral nature of an option, Sonoma Ranch could either con-tinue to make the annual payments and exercise the option or cease making the payments and thereby not exercise the op-tion. The Option Agreement would not be an agreement granting an option if Sonoma Ranch did not have the ability to decide to not exercise the option. Moreover, we do not consider the failure to specifically designate the time within which Sonoma Ranch had to act in order to elect not to exercise the option to be problematic. As a general rule, if no time is specified as to the duration of an option, the option is open for a reasonable time. 1 Williston, supra, § 5:15, at 1016.16 The integration clause of the Option Agreement eliminates any doubt as to the evolution of the transaction. The expressions in the Option Agreement make it clear that the original lack of clarity indicated in the February 2006 agreement was resolved in favor of the grant of an option. Sonoma Ranch was given the time to decide if it wanted to fully commit to the transaction without fear that it would lose the offer.17 The Option Agreement’s integration clause further expressed the parties’ intent that the Option Agreement, not any prior agreement, was their final intent. Although a party may rely on extrinsic evidence to demonstrate the intended interpretation of an integration clause in a contract, see Nellis v. Farmers Ins. Co. of Ariz., 2012-NMCA-020, ¶¶ 48-53, 272 P.3d 143, cert. denied, 2011-NMCERT-011, ___ P.3d ___, other than to state that they understood the trans-action to be one of a purchase and sale, the Garcias have not argued that the integration clause in the Option Agreement should not


be given effect. The essence of the formation of a contract is the objective, mutual assent of the parties, not an individual’s private be-lief. See Pope v. Gap, Inc., 1998-NMCA-103, ¶ 13, 125 N.M. 376, 961 P.2d 1283 (“Mu-tual assent is based on objective evidence, not the private, undisclosed thoughts of the parties.”). The purpose of extrinsic evidence in order to determine the scope and nature of a contract is to develop the circumstances surrounding the formation of the contract so as to ascertain the objective manifestation of intent. See Nellis, 2012-NMCA-020, ¶ 49 (stating that “the introduction of ex-trinsic evidence [is] designed to determine the circumstances under which the parties contracted and the purpose of the contract.” (internal quotation marks and citation omitted)). The district court did not err in determining that the parties’ agreement was an option to purchase real estate.TERMINATION OF THE OPTION AGREEMENT ON NON-PAYMENT18 The Garcias contend that the dis-trict court erred in its ruling that Sonoma Ranch’s non-payment ended its obligations under the Option Agreement. We view the propriety of the district court’s determina-tion to depend on the nature of the Option Agreement. Because the Option Agreement granted Sonoma Ranch an option, unilateral in nature, Sonoma Ranch had the option to purchase the Garcias’ property under the terms of the option. See Lake Shore Country Club, 171 N.E. at 501 (“An option contract is unilateral.”). The terms included the payment of $30,000 per acre for the ap-proximately twenty-five acres. They further included an initial payment of $150,000 and annual payments of $100,000. By fail-ing to make an annual payment, Sonoma Ranch placed itself in a position in which it had not complied with the terms of the option and would not be able to exercise its option rights. See Master Builders, Inc. v. Cabbell, 95 N.M. 371, 374, 622 P.2d 276, 279 (Ct. App. 1980) (“Failure to exercise an option results in its loss.”). 19 The question for the district court was whether the Option Agreement obligated Sonoma Ranch to make the annual pay-ments under the Option Agreement. Stated alternatively, the question is: if Sonoma Ranch as optionee does not exercise its op-tion, can it nevertheless be required to pay for it? The question is unique because our courts have only considered the question in its reverse form, i.e., when an optionee has sought to exercise an option. See, e.g., Cillessen v. Kona Co., 73 N.M. 297, 301-02, 387 P.2d 867, 870 (1964) (affirming the denial of specific performance to optionee

in an option contract); Master Builders, Inc., 95 N.M. at 374, 622 P.2d at 279 (same). In those circumstances, the questions have revolved around whether an optionee seek-ing to exercise an option has complied with its terms. Master Builders, Inc., 95 N.M. at 374, 622 P.2d at 279. The Garcias, as the optionors, are not seeking to enforce the option by making Sonoma Ranch complete the purchase, but they do want to receive payment for the option.20 Because of the unilateral nature of an option, we answer the question before us as a matter of law and determine that Sonoma Ranch is not required to pay for the option it does not exercise. The difficulty in this case arises because the Option Agreement is silent as to termination or notice of intent not to exercise the option. Indeed, if it pro-vided such provisions, any issue would be directed to compliance with such provisions. The only provision concerning both notice and exercise of the option required Sonoma Ranch to notify the Garcias if it intended to exercise the option.21 However, in the context of an option, payment of the consideration for the option is inextricably connected to the option itself. If Sonoma Ranch did not pay an annual payment, the option would terminate. The payments were thus required for Sonoma Ranch to continue the option from year to year.22 The unilateral nature of an option explains the nature of this relationship. Although the agreement to provide an op-tion for consideration is bilateral in that the optionor agrees to the terms of the option in exchange for the optionee’s payment for the option, the bilateral nature of the agree-ment ends at that point. See Dacy v. Vill. of Ruidoso, 114 N.M. 699, 702, 845 P.2d 793, 796 (1992) (stating that a “bilateral contract involves reciprocal promises” while a unilateral contract “consists of a promise by only one of the contracting parties”). Sonoma Ranch had the unilateral option to make the purchase and thereby complete the contractual relationship between the parties. See 1 Williston, supra, § 5:15, at 1016. If Sonoma Ranch were obligated to continue to make annual payments even if it had elected not to purchase the property, the option would no longer be unilateral. If that were the case, Sonoma Ranch would be required to pay $750,000 for an option to purchase the property for $750,000, even if it immediately elected not to purchase the property. The effect of such a requirement would be tantamount to requiring Sonoma Ranch to purchase the property because, under the terms of the Option Agreement, it

would pay $750,000 for the purchase. This effect is contrary to the notions of an option contract, the terms of the Option Agree-ment, and the parties’ intent as presented in this appeal.23 The same reasoning applies to the Garcias’ argument that they are entitled to the April 26, 2008 annual payment and accrued interest because Sonoma Ranch did not provide them with notice that it intended to terminate the Option Agree-ment. As we have discussed, Sonoma Ranch had the discretion to continue the option by virtue of the unilateral nature of the option. The Option Agreement required the annual payment but did not specify any notice in the event that Sonoma Ranch did not wish to exercise the option. Although Sonoma Ranch could have clarified its actions by providing notice, none was required. The annual payments were tied to the option. By not making the payment, Sonoma Ranch abandoned its rights and thereby terminated the Option Agreement.THE PRESENCE OF OTHER GENUINE ISSUES OF MATERIAL FACT24 The Garcias also argue that various provisions of the Option Agreement extend beyond those of a typical option agreement so as to indicate the bilateral, rather than unilateral, nature of the Option Agreement. They point to provisions by which they were required to cooperate with Sonoma Ranch in its effort to obtain annexation, develop-ment, or rezoning of the property; to grant Sonoma Ranch an easement for ingress and egress and for construction purposes; to permit Sonoma Ranch to move dirt within and from the property; and to allow Sonoma Ranch to inspect the property.25 An option contract is considered unilateral because the optionee solely has the right to exercise the option. Lake Shore Country Club, 171 N.E. at 501. That is not to say that there are no bilateral aspects to an option agreement. There must be mutual consideration underlying the agreement. Sisneros v. Citadel Broad. Co., 2006-NMCA-102, ¶ 31, 140 N.M. 266, 142 P.3d 34 (“A valid contract must possess mutuality of obligation.” (internal quotation marks and citation omitted)). The provisions specified by the Garcias appear to be incidental to the grant of the option and do not appear to include any consideration apart from that pertaining to the grant of the option. As a result, these provisions do not alter the uni-lateral nature of the option that is the subject of the Option Agreement or raise genuine issues of material fact as to the nature of the transaction.


26 The Garcias also make additional arguments addressing the district court’s ruling concerning Sonoma Ranch’s rights under the Option Agreement. They contend that the district court ignored the provisions of the Option Agreement relating to notice and that time was of the essence. They as-sert, in this regard, that, even if the Option Agreement is unilateral, Sonoma Ranch did not give them appropriate notice under the Option Agreement to excuse non-payment of the April 26, 2008 annual payment, which included interest. This argument, however, misapprehends the district court’s ruling. 27 As we have stated, the unilateral na-ture of an option is such that the optionee has the discretion to exercise the option according to the terms of the option. Lake Shore Country Club, 171 N.E. at 501. Time is of the essence because if the terms for exercise of the option are not strictly enforced, the optionor will be subject to greater burdens than were the subject of the bargain. See Best v. Edwards, 176 P.3d 695, 698 (Ariz. Ct. App. 2008) (“[A]n op-tion must be exercised in strict accordance with its terms because any relaxation of terms would substantively extend the op-tion contract to subject one party to greater obligations than he bargained for.” (internal quotation marks and citation omitted)). The Option Agreement did not address termi-nation, and the district court determined that Sonoma Ranch’s non-payment ended its obligations under the Option Agree-ment. This ruling is not affected by the notice provision of the Option Agreement. Although the annual payments included interest, by virtue of the unilateral nature of the option, Sonoma Ranch was not obligated to make the payment if it elected to end its obligation by non-payment. The Garcias’s argument would have more force if the annual payment could somehow be construed to represent payment for option time passed—but it cannot. The annual payments required in the Option Agreement are clearly designed to keep the option open for the following year.THE AMOUNT OWED FOR THE OPTION28 The Garcias alternatively argue that, under the language of the Option Agree-ment, Sonoma Ranch owes them $750,000 for the grant of the option. The Option Agreement states: “As consideration for the grant of this Option, Optionee shall pay Optionors the sum of $750,000.” In addi-tion, the Option Agreement provides that the property is approximately twenty-five acres and the option price is $30,000 per

acre. Thus, the total price for the purchase of the property, subject to adjustment as stated in the Option Agreement, is approximately $750,000. Notwithstanding this language, the Garcias argue that the Option Agree-ment is actually a contract to purchase rather than an option.29 In essence, the Garcias contend that Sonoma Ranch was required to pay them $750,000 for an option to purchase prop-erty for $750,000. In other words, Sonoma Ranch had to pay the full amount of the purchase price even though it acquired only an option to purchase the property; an op-tion that permitted Sonoma Ranch to elect not to purchase the property. The Garcias ask that we interpret the Option Agreement to reach a conclusion that is not commer-cially reasonable, and we decline to do so. See Smith v. Tinley, 100 N.M. 663, 665, 674 P.2d 1123, 1125 (1984) (observing that “an interpretation rendering a contract such that reasonable men would not enter into it is disfavored”); see also C.R. Anthony Co., 112 N.M. at 510 n.5, 817 P.2d at 244 n.5 (“A court may employ the many rules of contract interpretation that do not depend on evidence extrinsic to the contract.”).30 With regard to the rules of contract interpretation, the Garcias also argue that this Court should construe questions concerning the uncertainty of the Option Agreement against Sonoma Ranch because its attorney drafted the documents stating that “Sonoma Ranch is paying the Garcias the sum of $750,000.00, plus interest, for the grant of the option.” While, as a general rule, we construe uncertainties in contracts most strongly against the party drafting the documents, our purpose in construing a contract is to give effect to the intent of the parties. Smith, 100 N.M. at 664-65, 674 P.2d at 1124-25; Campos v. Homes by Joe Boyden, L.L.C., 2006-NMCA-086, ¶ 9, 140 N.M. 122, 140 P.3d 543. However, despite the Option Agreement’s language concerning Sonoma Ranch’s payment of $750,000 as consideration for the grant of the option, for the reasons we have dis-cussed, we cannot agree with the Garcias that the Option Agreement is uncertain. Although the total consideration for the op-tion was $750,000, the only understanding that comports with the unilateral nature of an option and is commercially reasonable is that the $750,000 consideration is the full consideration for the option if Sonoma Ranch were to elect to permit the option to run its full term.ESTOPPEL31 The Garcias further contend that Sonoma Ranch should be estopped from

arguing that the Option Agreement is a unilateral contract for a variety of reasons: (1) there are bilateral aspects to the Option Agreement; (2) Sonoma Ranch took actions in April and May 2008 that were contrary to an intent to terminate the Option Agree-ment; and (3) Sonoma Ranch has not caused a notice of the Option Agreement to be removed from the files of the county clerk. The Garcias raise the first and third conten-tions in their brief on appeal without having raised them in the district court. We thus do not address them on appeal. See Crutchfield v. N.M. Dep’t of Taxation & Revenue, 2005-NMCA-022, ¶ 14, 137 N.M. 26, 106 P.3d 1273 (“To preserve error for review, a party must fairly invoke a ruling of the district court on the same grounds argued in this Court.”).32 As to the second contention, the sum-mary judgment record establishes that, in April 2008, Sonoma Ranch paid property taxes on the property to the county. In early May 2008, the Garcias signed an easement over the property with El Paso Electric Company after Willie Garcia was informed by the project manager for Sonoma Ranch that Sonoma Ranch did not have any objec-tion to the Garcias doing so.33 The focus of the doctrine of equitable estoppel is “preventing a party from benefit-ting from deception or misleading conduct.” Mannick v. Wakeland, 2005-NMCA-098, ¶ 28, 138 N.M. 113, 117 P.3d 919, aff’d by Coppler & Mannick P.C. v. Wakeland, 2005-NMSC-022, 138 N.M. 108, 117 P.3d 914. It requires (1) a false representation or concealment of material facts, (2) knowl-edge of true facts, and (3) an intention or expectation that an innocent party would rely on those facts. Mem’l Med. Ctr., Inc. v. Tatsch Constr., Inc., 2000-NMSC-030, ¶ 9, 129 N.M. 677, 12 P.3d 431. The required reliance must be to the innocent party’s detriment. Id.; see also Mannick, 2005-NMCA-098, ¶ 29 (stating that, in order for a court to provide equitable relief for equitable estoppel, the court must establish facts that include a prejudicial change of position).34 Sonoma Ranch’s payment of the taxes due could not give rise to equitable estoppel. Sonoma Ranch paid the taxes on April 14, 2008, twelve days before the annual pay-ment became due. At that time, the Option Agreement was still in effect, and it required Sonoma Ranch to make the tax payment. The Garcias do not support their opposition to summary judgment with material facts that set forth an equitable estoppel issue concerning Sonoma Ranch’s tax payment.35 As to the easement, although the


development of the facts in this case could result in facts supporting the first two re-quirements of an equitable estoppel claim, the Garcias have not indicated the manner in which they have detrimentally relied on any representation stemming from Sonoma Ranch’s action in connection with the ease-ment. They have asserted that they have suffered damages because Sonoma Ranch has not made payments under the Option Agreement, but they have not linked the easement to the damages they have claimed. Nor have they asserted any argument that they were prejudiced or took any action, or

failed to take any action, to their detriment because of Sonoma Ranch’s action in con-nection with the easement. The doctrine of equitable estoppel does not apply in these circumstances.CONCLUSION36 The district court did not err in concluding on summary judgment that Sonoma Ranch’s failure to make the April 26, 2008 annual payment ended its obliga-tions under the Option Agreement. The Garcias, as optionors, are not entitled to enforce the Option Agreement, which, by its nature as an option, gives Sonoma Ranch,

as optionee, the right to fail to exercise its right to purchase the property. See Cillessen, 73 N.M. at 301, 387 P.2d at 870 (stating that the terms of an option contract must be “fully and completely accepted in all its parts” before becoming an executory con-tract). We affirm the district court’s grant of summary judgment.37 IT IS SO ORDERED. JAMES J. WECHSLER, Judge

WE CONCUR:MICHAEL D. BUSTAMANTE, JudgeLINDA M. VANZI, Judge


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The University of New Mexico is an Equal Opportunity/Affirmative Action Employer and Educator.

This position is within UNM’s Office of University Counsel. Under general direction and with limitedsupervision, this position provides legal counsel to the highest levels of University administrationrelating to the University’s academic health care system, its programs and oversight and management ofthe UNM Health Sciences Center’s medical malpractice claims and litigation. The UNM HealthSciences Center is the home of State’s only academic health center and the UNM Hospital operates theLevel One Trauma Center in the State of New Mexico. In turn, UNM Medical Group, Inc., the clinicalfaculty practice organization for the medical faculty at the UNM School of Medicine, manages andsupports the State’s largest contingent of physicians, surgeons, pharmacists, nurses and other alliedhealthcare practitioners in the State of New Mexico. This position requires significant diversity of knowledge with respect to health law matters. Major areasof responsibility include oversight and management of medical malpractice and medical professionalliability risk management issues including oversight and management of claims and lawsuits assertedagainst the UNM Health System, its component units and health care providers in coordination with theRisk Management Division of the New Mexico General Services Department, providing legal advicerelative to proactive and preventive risk and loss control within the UNM Health System and itscomponent units, reporting to UNM Health Sciences Center and UNM Health System governance andleadership on the oversight of medical malpractice and medical professional liability risk managementand loss control efforts. Other areas of responsibility include providing legal advice with respect topatient safety and quality initiatives and issues, the clinical practice of medicine and clinical services,medical staff matters (i.e., medical staff bylaws, professional licensure, credentialing, privileging, andimpaired physician issues), patient care, medical ethics issues, medical consent issues, health caredecision-making, advance directives and related matters; medical records, HIPAA privacy and security,and state privacy and confidentiality laws. It is strongly preferred that the successful candidate haveexperience in providing oversight and management of, legal advice with respect to, medical malpracticeand medical professional liability risk management issues including oversight and management ofclaims and lawsuits within the context of an academic health center. TO APPLY: For complete information including closing dates, minimum requirements, andinstructions on how to apply for this or any UNM position, please visit our website athttp://UNMJobs.unm.edu, call (505) 277-6947, or visit our HR Service Center at 1700 Lomas BlvdNE, Suite 1400, Albuquerque, NM 87131.

ASSOCIATE UNIVERSITY COUNSEL

NM Bar BulletinNext issue is 4/17 due today1/3 page - 4.65 x 4.75Cost

THE UNIVERSITY ofNEW MEXICO

AUGUST 28-31, 2013

REGISTRATION WILL OPEN IN MAY 2013

PLEASE CHECK OUR WEBSITE FOR UPDATES ON THE PROGRAM AT:

http://www.ca10.uscourts.gov/judconf

JOHN RUSSOIMMIGRATION LAW

www.johnrussolaw.com(505) 294-6662

Practicing Law Since 1977

LINDA S. BLOOM P.A.BANKRUPTCY LAW

505.764.9600 • [email protected]


http://www.pilarvailepc.com

http://UNMJobs.unm.edu

http://www.ca10.uscourts.gov/judconf

http://www.johnrussolaw.com



poSitionS

ClaSSified

AttorneyBusy PI Law Firm looking for attorney with 3-10 years’ experience to practice in the Albu-querque area. Experience in litigation, specifi-cally discovery and pleadings is a plus. Excellent pay and benefits based on experience. Please email resume to [email protected]

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

13th Judicial District AttorneyAssociate Trial Attorneys forSandoval and Valencia CountiesThe 13th Judicial District Attorney’s Officeis accepting resumes for entry level AssociateTrial Attorneys for the Sandoval (Bernalillo), and Valencia (Belen) County Offices. The position requires felony caseload and at times, misdemeanor prosecutions. Upon request, be prepared to provide a summary of cases tried. Salary is based upon experience. Send resumes to Kathleen Colley, District Office Manager, P.O. Box 1750, Bernalillo, NM 87004, or via E-Mail to: [email protected]. nm.us. Deadline for submission of resumes: Open until positions are filled.

Associate Attorney PositionArchibeque Law Firm, an AV rated insurance defense/civil litigation firm, is seeking an ex-perienced attorney for its Albuquerque office. Applicant must be a graduate of an accredited law school, licensed in New Mexico, with a minimum of 5-7 years experience specifically in the areas of civil litigation, insurance defense and construction defect. Ideal candidate will possess excellent oral and written communica-tion skills, strong analytical ability and be a highly motivated professional that can take initiative and work independently. In state travel is required. Benefits available. Please email letter of interest and resume including three professional references and salary require-ments to [email protected].

Associate Trial Attorney/Assistant Trial Attorney or Senior Trial AttorneyThe Eighth Judicial District Attorney=s Office is accepting applications for entry level Asso-ciate Trial Attorney, Assistant Trial Attorney or Senior Trial Attorney in the Raton Office. This position will be responsible for a felony and misdemeanor caseload plus administrative duties. Salary will be based upon experience and the District Attorney Personnel and Com-pensation Plan. Please send resumes to Daniel L. Romero, Chief Deputy District Attorney, 105 Albright Street-Suite L, Taos, New Mexico 87571. Position open until filled.

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

Anita A. Kelly, RN, MEd, CRC, CDMS, CCM, CLCP

New Frontiers, Inc. Life Care Planner Medical Care Manager

(505) 369-9309

The University of New Mexico is an Equal Opportunity/Affirmative Action Employer and Educator.

The University of New Mexico seeks a paralegal with 5 year’s current experience as a paralegal in a lawoffice. The candidate must have: (1) experience in contract review (2) experience with medical recordorganization and the preparation of medical record summaries; (3) strong litigation and documentdiscovery experience; (4) familiarity with state and federal courts; (5) strong organizational skills and theability to work independently; (6) Microsoft Word, Access, Power Point and Excel knowledge. (AnAssociate Degree in Paralegal studies may substitute for one year of experience. Salary range: $14.03min to $19.26 midpoint (HRLY)TO APPLY: For complete information including closing dates, minimum requirements, andinstructions on how to apply for this or any UNM position, please visit our website athttp://UNMJobs.unm.edu, call (505) 277-6947, or visit our HR Service Center at 1700 Lomas BlvdNE, Suite 1400, Albuquerque, NM 87131.

PARALEGAL

NM Bar BulletinNext issue is 4/17 due today1/6 page - 4.65 x 2.25Cost

THE UNIVERSITY ofNEW MEXICO

No need for another associateBespoke lawyering for a new millennium

THE BEZPALKO LAW FIRM Legal Research and Writing

(505) 341-9353 www.bezpalkolawfirm.com

STEVEN L. TUCKER

APPELLATE SPECIALIST

www.stevetucker.net

[email protected]

(505) 982-3467

“Once again the Bar Bulletin Classified has

been instrumental in helping me find work. It appears to be

just the job I need, too.”





http://UNMJobs.unm.edu

http://www.bezpalkolawfirm.com

http://www.stevetucker.net



Bankruptcy AttorneySeeking attorney to handle bankruptcy cases for national lenders. Case load will include state court cases also. Fax confidential cover letter, resume, salary requirements & refer-ences to Susan C. Little, 254-4722, email to [email protected], or mail to PO Box 3509, Alb 87190.

Contract Part-Time Litigation Paralegal – Santa Fe, NMThe Rodey Law Firm is accepting resumes for a contract part-time litigation paralegal to assist attorneys in its Santa Fe Office. Must have a minimum of five years hands-on litigation experience. Applicants must possess the ability to manage a case from the beginning through trial, including document production/analysis/organization/maintenance; discovery; all phas-es of case management; trial preparation and participation. Heavy client contact, interaction with experts. Requires flexibility and ability to manage multiple deadlines. Needs to be a self starter, willing to take initiative and work as a member of case team. Firm offers congenial work environment and competitive compensa-tion. Please send resume to [email protected] or mail to Human Resources Manager, PO Box 1888, Albuquerque, NM 87103.

Attorney PositionSeeking part-time attorney to work on as needed basis for employment and labor law firm. Must have 3+ years as an attorney. Please send letter of interest, resume, and writing sample to [email protected].

Family Law AttorneyI am looking for a relatively inexperienced attorney who sincerely wants to develop a prac-tice in divorce and family law and is wants to be in court often. Send your resume and salary requirement to [email protected].

Part-Time PositionPart-time position with Santa Fe one attorney plaintiff’s firm. Practice includes most areas of the law. Looking for paralegal or experienced legal assistant. Call Barry Green, 989-1834.

Legal Assistant IBernalillo County is seeking applications for a Legal Assistant I position to assist in the County Attorney’s Office. This job will include receiving and answering routine inquires and phone calls, maintaining records pertaining to daily transactions and business detail of the county Attorney’s Office such as time records, budget expenditures, preparing documents and correspondence requiring knowledge of legal terminology and document formats, calendar-ing court and other deadlines. It is preferred that the applicant have experience in the legal field. Minimum qualifications include a high school diploma or GED and four (4) years of secretarial or clerical experience. Post-second-ary education in the Legal field or related field may be substituted for work experience on a year for year bases. Pay rate is $12.4230 per hours. Benefit Package included with salary. Applications accepted on-line at www.bernco.gov. Deadline: Until filled. BERNALILLO COUNTY IS AN EQUAL OPPORTUNITY EMPLOYER.

Assistant County AttorneyBernalillo County is seeking applications for the full-time position of Assistant County At-torney to perform legal work for the County of Bernalillo, who will be dedicated to provide legal counsel and service to the Metropolitan Detention Center and to the County’s Public Safety departments, with the exception of the Sheriff’s Office. Experience in providing legal representation to corrections or detention facilities, law enforcement, or fire department agencies; and, specific experience with employ-ment law, policy and rule development, crimi-nal law or public procurement law is preferred. Attendance at various administrative hearings and meetings on behalf of the County may be required. The successful candidate will work under direction of the county Attorney. J.D. degree required and must be licensed to prac-tice law in the State of New Mexico. Minimum of 10 years’ experience in practice of law. Salary negotiable. Benefit package included with sal-ary. Provide a copy of educational documenta-tion and license with application. Applications are being accepted on line at www.bernco.gov. Deadline: Until filled. BERNALILLO COUNTY IS AN EQUAL OPPORTUNITY EMPLOYER.

Court of Appeals Staff AttorneyTHE NEW MEXICO COURT OF AP-PEALS is seeking applications for a full-time Assistant Staff Attorney position in the Pre-hearing Division. The position is located in either Santa Fe or Albuquerque. Regardless of experience, the beginning salary is limited to $54,768, plus generous fringe benefits. New Mexico Bar admission is required, and some practice experience is desirable. The position requires managing a heavy caseload of ap-peals on the Court of Appeals’ summary and nonsummary calendars, covering all areas of law considered by the Court. Extensive legal research and writing is required; the work atmosphere is congenial yet intellectually de-manding. Interested applicants should submit a completed New Mexico Judicial Branch Ap-plication for Employment, along with a letter of interest, resume, law school transcript, and short writing sample of no more than 5 pages to Paul Fyfe, Chief Staff Attorney, P.O. Box 2008, Santa Fe, New Mexico 87504, no later than 4:00 p.m. on Wednesday, May 8, 2013. To obtain the application please call 827-4875 or visit www.nmcourts.com and click on “Job Opportunities.” The New Mexico Judicial Branch is an equal opportunity employer.

Lawyer Supervisor The New Mexico Department of Transporta-tion is recruiting to fill a Lawyer Supervisor position. The position entails supervision of at least two (2) full time equivalent employees and representation of the Department in construc-tion claims and litigation in state and federal court, in construction and procurement-related administrative hearings, and in other practice areas as assigned by the General Counsel. Experience in public works construction and procurement law is highly desirable. Also experience in environmental law, Indian law, collections, water law, oil & gas law, torts, and transportation planning would be useful. The requirements for the position are a Juris Doc-tor Law degree from an accredited law school, a current license as a New Mexico attorney in good standing, and a minimum of seven (7) years of experience practicing law, of which three (3) years must be supervisory. Position is a Pay Band 85, hourly salary range from $23.54 to $41.85, with all state benefits to apply. Overnight travel throughout the state, good standing with the New Mexico State Bar, and a valid New Mexico driver’s license are re-quired. We offer the selected applicant a pleas-ant environment, supportive colleagues, and dedicated support staff. Working conditions: Primarily in an office setting. Applicants must apply through the State Personnel Office: http/www.state.nm.us/spo by the closing date of 05/01/2013. For application assistance, please contact Jim W. Chambers at 505-827-5138, or e-mail [email protected]. The New Mexico Department of Transportation is an equal opportunity employer.

Associate Attorney PositionRiley, Shane & Keller, P.A., an Albuquerque AV-rated defense firm, seeks an Associate to help handle our increasing case load. We are seeking a person with one to five years experience. Candidate should have a strong academic background as well as skill and inter-est in research, writing and discovery support. Competitive salary and benefits. Please fax or e-mail resumes and references to our office at 3880 Osuna Rd., NE, Albuquerque, NM 87109 c/o Office Manager (fax) 505-883-4362 or [email protected]

ParalegalExperienced paralegal needed for busy family law firm in Albuquerque. Family law experi-ence preferred. We are looking for a highly organized professional who can work indepen-dently. Exceptional people skills are needed due to substantial client interaction. Must be able to multi-task in a fast paced environment. Excellent work environment, benefits and sal-ary. Please provide resume and salary require-ments to [email protected] or fax to 505-889-8242

www.nmbar.org





http://www.bernco

http://www.bernco

http://www.nmcourts.com

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






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

Want a Second Pair of Eyes?Editing, Writing, Research, Appeals & BriefsContact Shannon Nairn at 980-3813, [email protected]

offiCe SpaCe

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.

Prestigious Santa Fe “Class A” OfficePrestigious Santa Fe “Class A” office for a law/professional firm. Two story, 5,000 sf. plus 825 sf. records basement. Premier location, adjacent to the State Capital & two blocks from the new District Court House. 1239 Paseo de Peralta. Available September 1, 2013. Contact Fred Soldow 719-239-0520

Office/Home AvailableTown home that can also be used as a home/office is available in La Luz near Coors and Montano, NE. 3000 sq. ft. Two hone lines, high speed access; handicap accessible; off street parking for four vehicles. $1500.00 per month plus $225.00/month association fees. Lease/purchase option available. Call Roger Eaton at (505) 264-9116 or email at [email protected].

Office Space in Santa FeRent office space in Santa Fe, on Luisa Place. Great opportunity for new attorney for over-flow/mentoring from experienced civil litiga-tion attorney. $400 includes all utilities and internet, except telephone. Call 505-474-7725 to schedule time to view and visit.

North I-25 OfficesProfessional office space on I-25. Great vis-ibility, great signage opportunities, covered secure parking included. $19.50/sq. ft. full service. Call Dan Hernandez or Fred Gorenz @ Berger-Briggs Real Estate 247-0444.

Office Space Available Near DowntownOffice 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.

453 Cerrillos, Santa FeOffices available with on-site parking. Two blocks to new SF Courthouse-State Supreme Court & Capitol. 170 – 1000 square feet. $475 - $1500/month. Call Lance Armer at 660-2335.

Shared Office Space AvailableShare space with two small law firms at Acad-emy Office Park. Three furnished offices avail-able. $300/month includes janitorial service, internet, reception, and all utilities except phone. Copier/scanner/fax available at cost. Shared areas include large reception area, two conference rooms, private bathrooms, break room and production area. Free parking and nice outdoor patio. Bookkeeping and/or billing services available at extra charge. Call Carrie at 821-5122.

Part-time Office Manager/ Legal AssistantSanta Fe Law Office seeks part-time Office Manager/Legal Assistant to work 15-20 hours per week. Must be a self-starter and willing to take initiative. Duties include answering phones, processing mail, invoicing, general office maintenance and filing pleadings and other legal documents in New Mexico courts and regulatory agencies. Offering a competitive salary. Applicants must have previous office experience. Legal experience is a plus. All re-sponses will be kept confidential. Please send resume, cover letter and three professional references to [email protected]

Family Law Paralegal – Full TimeNew Mexico Legal Group, P.C. is seeking a paralegal in the Family Law Division of our Albuquerque Offices. We offer great pay with health insurance and retirement benefits, and a fun, fast paced work environment. Ideal candidates will have significant experience in Divorce/Family Law and be proficient in MS Office and Outlook. More than anything we are looking for exceptional communication skills and the ability to interact with new cli-ents. Interested applicants should first check out our website, then respond to this ad with their resume and a personalized cover explain-ing why they are perfect for this position. Please reply to [email protected]

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

Litigation ParalegalA small, busy plaintiff's personal injury law firm is seeking an experienced litigation para-legal. Applicants must be experienced in all phases of case management from beginning thorugh trial, especially discovery and trial preparation. Requires good Word and other computer skills. Firm offers pleasant work environment and competitive salary. Please send resume to: [email protected].

Trial Secretary Staff counsel for Farmers Insurance Exchange and Affiliates is seeking a Trial Secretary with at least two (2) years of experience in personal injury law. Must be detail oriented, have multi-tasking abilities, handle high volume and assist the attorneys with trial preparation. Proficiency in Microsoft Word and Windows is necessary. A career with Farmers includes excellent ben-efits, competitive salary and an enjoyable work-ing environment. Please e-mail your resume to Carlos. [email protected] or fax your resume to: ORRAJ, ANDERSON & OBREY-ESPINOZA; (505) 246-2924.

Single Attorney SpaceShared office space available. One-third of 1263RSF (approx. 400SF). Shared confer-ence room, reception area, coffee bar, etc. with building owners. $600 per month. One (1) year lease. Call Ron Nelson 883-9662 - Uptown Square

Experienced Legal SecretaryLitigation firm seeks fulltime experienced Legal Secretary. Competitive salary, retirement plan, health insurance, three weeks leave per year, and paid overtime. Please send resume, refer-ences and salary history to Shannon Hidalgo, Firm Administrator, P.O. Box 25245, Albu-querque, NM 87125. No phone calls please.

www.nmbar.org

Litigation ParalegalAlbuquerque personal injury firm seeks a full time experienced litigation paralegal. The ideal candidate is bright and has the ability to organize, prioritize, work independently, and has familiarity with personal injury work (civil rights and class action work a plus) in state and federal courts. The position also requires excellent attention to detail, wonder-ful proof reading and editing skills, including blue booking. Applicants must be proficient technologically and have the skills to work in a digital-focused, paperless office (advanced use of Acrobat-pro, cloud based data management, digital-file maintenance, online-pro, etc) Must have excellent word processing and all basic of-fice skills. Send resume and cover to [email protected]. No Calls Please.








Richard Radecki MD

Current Practice

1. Comprehensive pediatric/adult physiatry a. Electrodiagnostic testing b. Interventional spine

injections c. Traumatic brain injury,

limb deficiency, spinal cord injury, stroke, spasticity management, pain management, cerebral palsy, botulism toxin injection, chronic pain

2. Independent medical examinations/impairment ratings and second opinion - adult and pediatric

3. Life care plan for children and adult

3874 Masthead NE Bldg G Albuquerque, NM 87109

505-338-2077 phone 505-338-1960 fax

www.mrcofnewmexico.com [email protected]

Board Certification

Physical medicine rehabilitation

Pediatrics-recertification pending

American Board of independent Medical Examiners-AMA guides edition 4, 5, 6

Life Care Planner-certification pending

Past Experience

Associated Professor-Northwestern University Medical Center-Rehabilitation Institute of Chicago-Pediatric Program

University New Mexico Medical Center-Department Pediatrics Associate Professor, member adult trauma service - University of New Mexico Level 1 Trauma System

Medical director Lovelace Pain Center, Medical Director New Mexico Spine

Team leader Stroke Care Plan, Team Leader Spine Care Plan-Lovelace Healthcare

Medical Dir. Pediatric Rehabilitation Services - University New Mexico Hospital, Carolina Medical Center, Western rehabilitation Institute

Dir. Of Pediatrics - Shriners Hospital Salt Lake City, Director of Limb Deficient Clinic - Shriners Hospital

Pediatric Surveyor for Commission of Rehabilitative Facilities

Dr Radecki has sustained a strong clinical practice in physical medicine and rehabilitation, providing care to children and adults with limb deficiencies, brain injury, spinal cord injury, and persistent pain difficulties. He has spoken internationally and nationally on these subjects. He has developed a strong medical foundation in the care of children and adults with catastrophic illnesses and injuries outlining future needs and resource utilization.

Past E ri

http://www.mrcofnewmexico.com


New Mexico’s First aNd Largest Law FirM devoted

excLusiveLy to the Practice oF divorce aNd FaMiLy Law

505-880-3070 www.atkiNsoNkeLsey.coM

it’s about…

the Next steP For the FaMiLy

http://www.atkiNsoNkeLsey.coMit%E2%80%99s

http://www.atkiNsoNkeLsey.coMit%E2%80%99s

april 17, 2013 • volume 52, no. 16 - state bar of new mexico · - april 17, 2013 - volume 52, no....

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