march 28, 2012 • volume 51, no. 13 · 2. b. ar. b. ulletin - march 28, 2012 - volume 51, no. 13....

Bar Bulletin - March 28, 2012 - Volume 51, No. 13 1

Flaming Cacti, by Marian Berg (see page 3) Weems Art Gallery, Albuquerque

Special InsertYLD. . . In Brief

Inside This Issue

March 28, 2012 • Volume 51, No. 13

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

Swearing-In Ceremony for The Hon. Petra Jimenez Maes .........................4

Second Judicial District Court Investiture of the Hon. Brett R. Loveless .........4

Thirteenth Judicial District Court Judicial Vacancy ..............................................4

2012 State Bar Annual Awards: Call for Nominations ......................................6

State Bar of New Mexico’s Definitely Got Talent ..7

New Mexico Law Day Activities ........................10

New Mexico Courts E-Filing Update ................10

Clerk’s Certificates .............................................16

Rules/Orders

No. 12-8300-011: In the Matter of Amendments to UJI 13-832 NMRA of the Uniform Jury Instructions for Civil Cases ..............................................19

From the New Mexico Court of Appeals

2012-NMCA-023, No. 29,850: Atherton v. Gopin ..............................................20

2012-NMCA-024, No. 28,167: State v. Soutar ....................................................23

2 Bar Bulletin - March 28, 2012 - Volume 51, No. 13

9 a.m. to 1 p.m., Saturday, April 28

Contact the YLD member near you by April 13 and provide the practice areas for which you will take calls.

AlbuquerqueKeya [email protected](505) 848-9511

FarmingtonKen [email protected](505) 599-9810

Las CrucesDavid [email protected](575) 526-2449

RoswellJared [email protected](575) 208-4469

YOUNG LAWYERS DIVISION

CeLebRAte LAw DAy

Participate in the Young Lawyers Division

Ask-a-Lawyer Call-In Program.

All State Bar members are welcome.

mailto:[email protected]





Notices ................................................................................................................................................................42012 State Bar Annual Awards: Call for Nominations .........................................................................6State Bar of New Mexico’s Definitely Got Talent .....................................................................................7New Mexico Law Day Activities................................................................................................................ 10New Mexico Courts E-Filing Update ....................................................................................................... 10Legal Education Calendar ......................................................................................................................... 11Writs of Certiorari ......................................................................................................................................... 13List of Court of Appeals’ Opinions ........................................................................................................... 15Clerk’s Certificates ......................................................................................................................................... 16Recent Rule-Making Activity ..................................................................................................................... 18Rules/Orders

No. 12-8300-011: In the Matter of Amendments to UJI 13-832 NMRA of the Uniform Jury Instructions for Civil Cases ....................................................................... 19

Opinions From the New Mexico Court of Appeals

2012-NMCA-023, No. 29,850: Atherton v. Gopin ...................................................................... 20

2012-NMCA-024, No. 28,167: State v. Soutar ............................................................................. 23

Advertising ...................................................................................................................................................... 29

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

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

State Bar Staff Executive Director Joe Conte Membership and Communications Director Chris Morganti 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 ©2012, State Bar of New Mexico. No part of this publica-tion may be reprinted or otherwise reproduced without the publisher’s written permission. The Bar Bulletin has the authority to edit letters and materials submitted for publication. Publishing and editorial decisions are based on the quality of writing, the timeliness of the article, and the potential interest to readers. Appearance of an article, editorial, feature, column, advertisement or photograph in the Bar Bulletin does not constitute an endorsement by the Bar Bulletin or the State Bar of New Mexico. The views expressed are those of the authors, who are solely responsible for the accuracy of their citations and quotations. State Bar members receive the Bar Bulletin as part of their annual dues. The Bar Bulletin is available at the subscription rate of $125 per year and is available online at www.nmbar.org.

The Bar Bulletin (ISSN 1062-6611) is published weekly by the State Bar of New Mexico, 5121 Masthead NE, Albuquerque, NM 87109-4367. Periodicals postage paid at Albuquerque, NM. Postmaster: Send address changes to Bar Bulletin, PO Box 92860, Albuquerque, NM 87199-2860.

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

March 28, 2012, Vol. 51, No. 13Cover Artist: Marian Berg believes the act of making art is a healing and life-affirming process. She does plein air painting and works with pastels, which contain a minimum amount of binder, thus maintaining the purity of the original pigment. Berg teaches at the New Mexico Art League and conducts workshops.

State Bar WorkShopS

March

28 Consumer Debt/Bankruptcy Workshop 6–8 p.m., State Bar Center

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

april

10Lawyerly Referral for the Elderly Workshop10:30–11:45 a.m., Presentation1–4:30 p.m., ClinicsLas Vegas Senior Citizens Center, Las Vegas

11Lawyerly Referral for the Elderly Workshop10:30–11:45 a.m., Presentation9:30–10 a.m. and 1:30–3:30 p.m., ClinicsPhil Lovato Senior Center, Taos

25

Consumer Debt/Bankruptcy Workshop 6–8 p.m., State Bar Center

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

MeetingS

March

30 Immigration Law Section BOD, noon., via teleconference

april

4

Bankruptcy Law Section BOD, noon, U.S. Bankruptcy Court

4 Employment and Labor Law Section BOD, noon, State Bar Center

5 Real Property, Trust and Estate Section BOD, 11 a.m., via teleconference

10 Lawyers Professional Liability Insurance Committee, noon, State Bar Center

11 Children’s Law Section BOD, noon, Juvenile Justice Center

11 Paralaegal Division CLE Series, noon, State Bar Center

11 Attorney Support Group, 5:30 p.m., Unitarian Universalist Church, Santa Fe

taBle of contentS




http://www.nmbar.org




www.nmbar.orgnoticeS

With respect to the public and to other persons involved in the legal system:

I will be mindful of my commitment to the public good.

profeSSionaliSM tipcourt neWSNM Supreme CourtBoard of Legal SpecializationComments Solicited The following attorney is applying for certification as a specialist in the area of law identified. Application is made under the New Mexico Board of Legal Special-ization, Rules 19-101 through 19-312 NMRA, which provide that the names of those seeking to qualify shall be released for publication. Further, attorneys and others are encouraged to comment upon

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

1st Judicial District Court Exhibits children’s court, civil, criminal, domestic relations, 1977–1997 May 14 (505) 455-8275 and probate cases

any of the applicant’s qualifications within 30 days after the publication of this notice. Address comments to New Mexico Board of Legal Specialization, PO Box 93070, Albuquerque, NM 87199.

Trial Specialist-Civil LawLuis E. Robles

Second Judicial District CourtJudicial Investiture The judges and employees of the 2nd Judicial District Court cordially invite you to attend the investiture ceremony of the Hon. Brett R. Loveless, Division VI, at 4 p.m., March 29, at the Frank H. Allen, Jr. Ceremonial Courtroom 338. If there are any judges who wish to participate in the ceremony, please bring your robe and report to jury room 338A between 3–3:50 p.m. A reception following the ceremony will be held at the Hotel Andaluz, 125 Second Street NW, Albuquerque.Right to Challenge/Excuse Judge Governor Susana Martinez has an-nounced her appointment of Brett Loveless to fill the vacancy in Division VI at the 2nd Judicial District Court. Effective March 5, Judge Brett Lovelace will be assigned Criminal Court cases previously assigned to Judge Neil C. Candelaria. Parties who have not previously exercised their right to challenge or excuse will have 10 days from March 28 to challenge or excuse the judge pursuant to Supreme Court Rule 1-088.1.

Thirteenth Judicial District CourtJudicial Vacancy A vacancy on the 13th Judicial District Court exists in Los Lunas as of March 17 due to the retirement of the Hon. John W. Pope. 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 13th Judicial District Court Nominating Committee, solicits applications for this po-sition from lawyers who meet the statutory qualifications in Article VI, Section 14 of the New Mexico Constitution. Applications, as well as information related to qualifications for the position, may be obtained from the Judicial Selection website, http://lawschool.unm.edu/judsel/application.php, or via email by calling Sandra Bauman, (505) 277-4700. The deadline for applications is 5 p.m., April 2. 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 Nominat-ing Commission will meet April 12 at the Valencia County Courthouse, Los Lunas, to evaluate the applicants for this position. The meeting is open to the public, and members of the public who wish to speak about any of the candidates will have an opportunity to be heard.

You are cordially invited to attend

the Swearing-In Ceremony for The Honorable Petra Jimenez Maes

as Chief Justice of the New Mexico Supreme Court.

3:30 p.m., April 4th,Supreme Court Courtroom

237 Don GasparSanta Fe, New Mexico

Reception immediately following the ceremony

in the Law Library.

Seating is limited.If you plan to attend,

please R.S.V.P. to Joey Moya, [email protected] or

505-827-4826.


http://lawschool



www.nmbar.org

State Bar neWSAttorney Support Group • April 16, 7:30 a.m.

Morning groups meet on the third Monday of the month.

• April 2, 5:30 p.m. Afternoon groups meet on the first Monday of the month.

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

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

The group meets regularly on the second Wednesday of the month at the Unitarian Universalist Church, 107 West Barcelona Rd., Santa Fe. For 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 on the first Wednesday of each month. The next meeting will be held at noon, April 4, at the State Bar Center. Lunch is provided to those who R.S.V.P. to [email protected]. For information about the section, visit the State Bar website, www.nmbar.org, or contact Chair Victor Montoya, [email protected] or 505-830-8251.

Paralegal DivisionLuncheon CLE Series The Paralegal Division invites mem-bers of the legal community to bring a lunch and a t tend In s and Out s o f

Arbitration (1.0 general CLE credit) presented by Tim Sheehan. The program will be held from noon–1 p.m., April 11, at the State Bar Center (registration fee for attorneys–$16, members of the Paralegal Division–$10, non-members–$15). Registration begins at the door at 11:45 a.m. For more information, contact Cheryl Passalaqua, 505-247-0411, or Krista Gianes, 505-222-9352. This CLE will be webcast to three locations:

• Santa Fe: Montgomery & Andrews, 325 Paseo de Peralta. Contact Donna Ormerod, 505-986-2520.

• Roswell: Hinkle, Hensley, Shanor & Martin LLP, 400 N. Pennsylvania, Ste. 700. Contact Dora Paz, 575-622-6510.

• Farmington: Titus & Murphy, 2021 E. 20th Street. Contact Heather Parmley, 505-326-6503.

Paralegal Survey The Paralegal Division invites all New Mexico paralegals to participate in its survey on paralegal compensation, utilization and benefits. The survey may be found at https://www.surveymonkey.com/s/ParalegalSurvey. Deadline to respond is April 6.

Young Lawyers Division2012 Summer Fellowships The Young Lawyers Division is offering two fellowships for the summer of 2012 to law students interested in working in public interest law or the government sec-tor. Depending on the circumstances of the position, the fellowship awards could be up to $3,000 for the summer. Applicants must be a current law student in good standing with their school. Applications for the fel-lowship must include: (1) a letter of interest that details the student’s interest in public interest law or the government sector; (2) a résumé; and (3) a written offer of employ-ment for an unpaid legal position in public interest law or the government sector for the summer of 2012. Applications containing offers of employment that are contingent upon the successful completion of a back-ground check will not be considered unless verification of the successful completion of the background check is also provided. Submit applications to Samantha M. Hults, YLD Summer Fellowship Coordinator, Legal Department, PO Box 2248, Albu-querque, NM 87103-2248. Applications must be postmarked by March 31. Direct questions to YLD Chair Samantha M. Hults, [email protected]. Junior Judges Program The Young Lawyers Division is seeking attorney volunteers for the Junior Judges

New Mexico Lawyers & Judges Assistance

Program

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

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

Judges888-502-1289

Have you noticed?

The State Bar now has paperless

billing. No more piles of papers!

Whatever you purchase—from

State Bar dues to advertising— you

are receiving invoices

and statements via email

from State Bar Accounting.

Video ConferenCing

Let us host your next video conference.Save time and eliminate travel expenses.

Free to State Bar sections, divisions, committees and the courts.

Only $35 per hour for all others.Contact Tony Horvat,

[email protected] or (505) 797-6033.

Program. Volunteers will visit with students enrolled in the 3rd, 4th, and 5th grades at the Questa Independent Schools April 27. If you are interested in participating or need more information, contact Tina Cruz, [email protected] HelpLine Volunteers Needed New Mexico Legal Aid and the State Bar Young Lawyers Division are seeking volunteers for the domestic violence, sexual assault and stalking helpline. Volunteer at-torneys provide legal information and refer-rals to callers statewide. The helpline can be transferred directly to your phone, making this an easy way to provide valuable services to victims and pro bono hours. Join us in this important project. For more informa-tion or to volunteer, contact Erin Olson, 505-243-7871 or [email protected] Needed for National Mock Trial Championships Looking for a fun and easy way to get some volunteer hours? Volunteers are needed for the 2012 National Mock Trial Championships on Friday, May 4, and Sat-urday, May 5, in Albuquerque. This is also



https://www.surveymonkey.com/s/ParalegalSurvey

https://www.surveymonkey.com/s/ParalegalSurvey






www.nmbar.org

a great opportunity to see some top kids in action and support their interest in the judicial system. To volunteer, contact YLD Region 1 Director Ken Stalter, [email protected]. Include your name, email address, and phone number. You will have the opportunity to select what times you would like to volunteer. Volunteers will also need to attend a volunteer training at 4:30 p.m., May 3.

unMLaw Library HoursTo May 12Building & 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

Women’s Law CaucusVanzi Named 2012 Justice Mary Walters Honoree Each year, the UNM Women’s Law Caucus honors an outstanding woman in the New Mexico legal community. Justice Mary Walters, the first female member of the New Mexico Supreme Court, represents a pioneering spirit for women in the legal community. The award given in her name stands for courage, strong ethics, leadership and mentorship in the legal field. The Hon. Linda M. Vanzi of the New Mexico Court of Appeals has been named the 2012 recipient

of the Justice Mary Walters Award. A former trial attorney, Vanzi has served on the bench in New Mexico since 2004 and has been a judge with the Court of Appeals since 2008. The award will be presented to Judge Vanzi at the Justice Mary Walters Award Dinner at 6 p.m., March 29, UNM Student Union Building, Ballroom A, Albuquerque. Tickets are $45 per person or $325 for a table of eight. The event is open to the public. For more information or to reserve tickets, visit www.unm-wlc.org or email [email protected].

other BarSAlbuquerque Bar AssociationMember Luncheon The Albuquerque Bar Association’s Member Luncheon will be held at 11:45 a.m., April 3, at the Embassy Suites Hotel, 1000 Woodward Place NE, Albuquerque. The luncheon speaker is Dick Minzner of Rodey Dickason Sloan Akin & Robb PA. Immediately following lunch, Minzner will present an update of the current legislative session from 12:30–1:30 p.m. This presenta-tion will provide 1.0 general CLE credits for those attendees who wish to purchase credit. Lunch only: $30 members/$40 non-members with reservations; lunch/CLE, $60 members/$80 non-members with reservations; CLE only, $30 members/$40 non-members with reservations. Register for lunch by noon, March 30. To register:

1. log on to www.abqbar.org;2. email [email protected];3. fax to (505) 842-0287;

4. call (505) 842-1151 or (505) 243-2615; or

5. mail to PO Box 40, Albuquerque, NM 87103

other neWSChristian Legal AidNew Volunteer Training Christian Legal Aid of New Mexico invites new members to join us as we work together to secure justice for the poor and uphold the cause of the needy. A New Vol-unteer Seminar will be held from 11 a.m.–5 p.m., April 20, in the State Bar Boardroom. Join us for free lunch and training as we learn the basics on how to provide legal aid. For more information or to register, contact Jen Meisner, 505-610-8800, or Jim Roach, 505-243-4419, or email [email protected].

NM Legal AidFree Legal Clinics Free legal clinics to qualified low-income New Mexico residents, 301 Gold Avenue SW, Albuquerque:

• Unemployment Insurance Compensation Clinic Once a month on Friday morning 9 a.m., March 30

Anyone interested must contact New Mexico Legal Aid to apply and schedule a date to attend one of the clinics. For further information, call 505-243-7871. Also contact the office with legal questions involving housing, consumer and public benefits. Victims of domestic violence or sexual assault can call the hotline, 505-243-4300 or 1-877-974-3400.

noMinationS noW Being accepted

2012 State Bar annual aWardS

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

State Bar of New MexicoPO Box 92860

Albuquerque, NM 87199-2860Fax (505) 828-3765 or e-mail [email protected]

Deadline for Nominations: April 30

For more information, see the March 7 (Vol. 51, No. 10) Bar Bulletin or visit http://www.nmbar.org/Attorneys/AM/Nominations2012.pdf.

Submit

announcements

for publication in

the Bar Bulletin to

[email protected]

by noon Monday

the week prior to

publication.


http://www.unm-wlc.org

http://www.abqbar.org



http://www.nmbar.org/Attorneys/AM/Nominations2012.pdf



State Bar of New Mexico’S Got taleNtdefinitely

^ The State Bar Center Auditorium was the scene of the best show in town March 9 when the State Bar Foundation staged the “State Bar of New Mexico’s Got Talent” fundraising event. Over 160 patrons attended the show and dinner, with proceeds going to fund legal services for the needy in New Mexico. Plans are already underway for next year’s show, scheduled for March 8, 2013. Mark your calendars and don’t miss this great event.

The Hon. Frank Sedillo, Hon. Briana Zamora, Hon. Henry Alaniz,

Hon. Joseph Alarid, and Hon. Benjamin Chavez enjoy the show

and collaborate on choosing the winning act.

Winners

El Cuarteto Sin Nombre: Maria Martinez, Chris Melendrez, Issac Estrada, and Robert Lucero

Runners-Up

Moon Dogs: Stuart Butzier, Gabe Kachirisky, Susan Bisong, John Myers, and George Kachirisky

Guests enjoyed dinner donated by area businesses.

Volunteer Erika Anderson (left) takes tickets at the door. The YLD Chair Samantha Hults (right) gets the show started.


Emcee Charles Fisher keeps the audience highly entertained between acts.

Justin Muehlmeyer (3L), Spanish Guitar

Singer Jay Hill accompanied by Deb Borio on the piano

Dave Reynolds

Stand-up Comic Rose Provan

Singing Prosecutor Ricardo Berry

Laurie McFarland

Aaron Fields

Phabulous Phlegmtones: Kate Mulqueen, Jody Karp, Susan Braun, and Jane McGuire

Attorney William Salmon (right) plays with the Swamp de Ville Band.

Keith Burn

Stevie Nichols and Larry Aguilar


Making a DifferenceState Bar of New Mexico’s Got Talent

This event would not have been possible without the energy, organization, talent and good looks of the following:

The TalentCharles Fisher, Esq, EmceeLarry AguilarRicardo Berry, Esq.Susan Bisong, Esq.Deb Borio, Esq.Susan BraunKeith Burn, Esq.Stuart Butzier, Esq.Issac Estrada, Esq.Aaron Fields, Esq.Charles Fisher, Esq.Jay Hill, Esq.Gabe KachiriskyGeorge KachiriskyJody KarpRobert Lucero, Esq.Maria Martinez, Esq.Laurie McFarland, Esq.Jane McGuireChris Melendrez, Esq.Justin Muehlmeyer, 3LKate MulqueenJon MyersStevie Nichols, Esq.Rose Provan, Esq.Dave Reynolds, Esq.Bill Salmon, Esq.

The VolunteersSophia Alonso, Esq.Erika Anderson, Esq.Susan BarelaTobanna Barker, Esq.Kris BeckerDeb Borio, Esq.Martha Chicoski, Esq.Joe ConteElizabeth De SantiagoSpencer Edelman, Esq.

Chloe HerreraJeannie Hunt, Esq.Barbara Koenig, Esq.Alan KrollDaniel MacyChristopher MuldrowDavid NewquistMoira NewquistSally Paez, Esq.Matt Page, Esq.Louise PocockDorma SeagoDebbie TopeJoel Widman, Esq.

The JudgesHon, Henry AlanizHon. Joseph Alarid (Ret.)Hon, Benjamin ChavezHon. Frank SedilloHon. Briana Zamora

The Local Businesses That Donated Food and Drink (Please give them YOUR support)

Bravo RestaurantBucca Di BeppoRoma BakerySavoy RestaurantSeasons RestaurantTaste Boutique CateringTractor BrewingTwo Fools PubZinc Winebar and Bistro

The Winners1st Place: “El Cuarteto Sin Nombre”

(Robert Lucero, Maria Martinez, Chris Melendres, Issac Estrada)

2nd Place: “Moon Dogs” (Stu Butzier, Susan Bisong, Gabe Kachirisky, George Kachirisky, Jon Myer)

The Organizing CommitteeSamantha Hults, YLDKeya Koul, YLDRobert Lara, YLDKate Mulqueen, Bar FoundationBen Sherman, YLD

The Financial SupportersCastle Stawiarski LLCState Bar Paralegal DivisionState Bar Young Lawyers DivisionLegal Services and Programs CommitteeBert Parnall

The CauseThe New Mexico State Bar Foundation, a 501(c)(3) raises money from the legal community to fund projects benefitting the legal community and the New Mexico community, like Lawyer Referral for the Elderly, Lawyers and Judges Assistance Program, and pro bono efforts

across the state.

"Everyone volunteered their

time and talent to make this fun

night a big success.”

—Hon. Benjamin Chavez

“It was a creative, enthusiastic and memorable way to help fund activities by the State Bar Foundation!”—Hon. Frank Sedillo

“The talent on display was phenomenal. Clearly we had a group of lawyers who could give up their day jobs.”

—Hon. Joseph Alarid (ret.)


Albuquerque Bar Association Law Day LuncheonNoon, May 1, Hyatt Regency Hotel, 330 Tijeras NW, AlbuquerqueKeynote Speaker: The Hon. Jimmie V. Reyna, Circuit Judge,

U.S. Court of Appeals for the Federal Circuit Judge Reyna was born and raised in New Mexico. He attended the University of

Rochester (B.A., 1975) and the UNM School of Law (J.D.,1978). Special Recognitions: 2012 Gene Franchini Mock Trial Champions

State Bar Essay Contest WinnersPlease note this is a pre-paid event. Tickets will not be sold at the door. A large turnout is expected for this program so make your reservations today: individual tickets, $40; table of 10, $400; sponsorship and table of 10, $720; sponsorship, $400. Recognition

of sponsors and donations will appear on the program and will be announced at the luncheon. Register by noon, April 27. To register:

1. log on to www.abqbar.org; 2. send email to [email protected]; 3. call 505-842-1151 or 505-243-2615; 4. fax to 505-842-0287; or 5. mail to PO Box 40, Albuquerque, NM 87103.

New Mexico courtS e-filiNG update The first week following the implementation of mandatory e-filing in the 5th and 10th Judicial district courts went well. The usual first-week problems were quite manageable, which is a credit to File and Serve support staff and court staff in the two districts. During this first week, we received 48 filings in the 10th and 476 filings in the 5th, which we expect to go up in the next few weeks as filers become more accustomed to the File and Serve system.

The addition of these districts means we have a good representative sample of urban and rural courts, and the AOC can now take some time to assess the overall impact of e-filing in New Mexico, for both courts and filers. That data will be fairly representative of e-filing trends in the entire state.

The purpose of the assessment is to determine what we are doing right and what we could do better with future implementations. Our preliminary suspicion is that we have resolved the significant technical issues but that we still have work to do on what we call “change management” issues, or those issues that involve legal culture changes associated with conversions from paper-based systems to digital systems.

We also hope to learn which document types must be retained indefinitely, in paper as well as digital formats. We are quite aware that conversion of documents from paper formats to 300 dpi (dots per inch) black and white formats means that we may not completely retain key document elements that might be needed in the future to determine the authenticity of those documents.

—From the New Mexico Supreme Court

•Visit https://ofs.tylerhost.net/nm for Odyssey File and Serve support, training, and contact information.

•The Judicial Information Division (JID) support is available from 8 a.m.–5 p.m., Monday–Friday.

JID Help Desk 1-505-476-6911 JID Help Desk Email [email protected]

•Judicial District Emails 1st Judicial District Court: [email protected] 2nd Judicial District Court: [email protected] 13th Judicial District Court: [email protected]

Helpful Links and Contacts

New Mexico law day activitieS

CELEBRATE LAW DAY

http://www.abqbar.org


https://ofs.tylerhost.net/nm






legal education March

28 Electronically Stored Information: What’s Under Lock and Key

2.0 G Teleconference TRT, Inc. 800-672-6253 www.trtcle.com

28 Employment Laws Made Simple 5.0 G, 1.0 EP Albuquerque NBI, Inc. 800-930-6182 www.nbi-sems.com

29 2nd Annual Solo and Small Firm Institute

5.0 G, 2.0 EP Albuquerque Center for Legal Education of

NMSBF 505-797-6020 www.nmbarcle.org

29 Lawyer Marketing: An Ethics Guide

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

29 Legal Ethics in a Changing Landscape

3.0 EP Santa Fe TRT, Inc. 800-672-6253 www.trtcle.com

29 Riveting Legal Ethics Issues and the Law 3.0 EP Santa Fe TRT, Inc. 800-672-6253 www.trtcle.com

30 Legal Ethics in a Changing Landscape

3.0 EP Albuquerque TRT, Inc. 800-672-6253 www.trtcle.com

30 Riveting Legal Ethics Issues and the Law 3.0 EP Albuquerque TRT, Inc. 800-672-6253 www.trtcle.com

30 Skeptically Determining the Limits of Expert Testimony and Evidence, Part 3

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

april

2 Arbitration: Basics and Procedure 2.0 G Teleconference TRT, Inc. 800-672-6253 www.trtcle.com

3 27th Annual Bankruptcy Year in Review

5.9 G, 1.0 EP Albuquerque VR Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

3 Compatibility of Legal and Judicial Ethics 2.0 EP Teleconference TRT, Inc. 800-672-6253 www.trtcle.com

3 Portability of the Estate and Gift Tax Exemptions–Planning in 2012

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

3 The Relevance and Risks of Evidence and e-Discovery for Everyday Practice


10 Employee Discipline and Discharge: Policies and Procedures to Limit Liability


12 Drafting Life Insurance Trusts 1.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

12 Recusal: A Hot New Legal Ethics Topic 2.0 EP Teleconference TRT, Inc. 800-672-6253 www.trtcle.com

13 Admissible Evidence: Computer Forensics Investigation


13 Spring Cleaning Your Law Practice Management

6.0 G New Mexico Criminal Defense

Lawyers Association and the New Mexico Women’s Bar Association

505-992-0050 or [email protected]

16 Bench and Bar Substance Abuse and Other Misjudgments

2.0 EP Teleconference TRT, Inc. 800-672-6253 www.trtcle.com

18 Compatibility of Legal and Judicial Ethics

2.0 EP Teleconference TRT, Inc. 800-672-6253 www.trtcle.com

http://www.trtcle.com

http://www.nbi-sems.com

http://www.nmbarcle.org




















legal education www.nmbar.org

17 2011 EP Conquering the Pitfalls of Our Profession for a Healthy and Successful Career

2.0 EP Albuquerque VR Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org 17 Cybersleuth’s Guide

to the Internet 5.5 G Albuquerque VR Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

17 Everyday Ethics in Your Practice 3.0 EP Albuquerque VR Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

17 Skeptically Determining the Limits of Expert Testimony and Evidence, Part 3


17–18 Real Estate Joint Ventures, Parts 1 and 2


19 Landlord Tenant Law General 5.6 G, 1.0 EP Albuquerque Sterling Education Services 715-835-5132 www.sterlingeducation.com

23 Mediation: Basics and Procedure 2.0 G Teleconference TRT, Inc. 800-672-6253 www.trtcle.com

24 Franchisee Red Flags and Traps: What You Should Know Before Your Client Buys


26 Construction Contracts: Anticipating the Unanticipated, Ensuring Performance and Limiting Downside Risk


26 Electronically Stored Information: What’s Under Lock and Key


27 Ethics for Estate and Trust Planners

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

27 Recusal: A Hot New Legal Ethics Topic 2.0 EP Teleconference TRT, Inc. 800-672-6253 www.trtcle.com

27–28 2012 New Mexico Collaborative Law Symposium: The Basics

11.0 G, 1.0 EP Albuquerque Center for Legal Education of NMSBF 505-797-6020 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 March 16, 2012

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

petitions for Writ of certiorari filed and pending

Date Petition FiledNo. 33,510 State v. Vite COA 29,984 03/15/12No. 33,509 State v. Toohey COA 31,635 03/15/12No. 33,511 State v. Ortiz COA 31,828 03/14/12No. 33,508 State v. Taylor COA 31,400 03/14/12No. 33,507 State v. Phillips COA 31,566 03/14/12No. 33,506 State v. Duran COA 31,346 03/12/12No. 33,501 Martinez v. New Mexico

Tax and Revenue COA 31,829 03/12/12No. 33,502 Banos v. State COA 29,795 03/09/12No. 33,499 Parmentier v. Lopez 12-501 03/09/12No. 33,496 State v. Macias-Martinez COA 30,077 03/07/12No. 33,495 State v. Arguello COA 31,569 03/07/12No. 33,492 Dominguez v. Garcia 12-501 03/06/12No. 33,491 State v. Avellone COA 31,279 03/06/12No. 33,490 Zuni Pubic Schools v. N.M.

Public Education Dept. COA 30,861 03/06/12No. 33,488 State v. Anaya COA 31,640 03/05/12No. 33,487 State v. Martinez COA 30,580 03/05/12No. 33,344 Pacheco v. Bari COA 30,916 03/05/12No. 33,483 State v. Consaul COA 29,559 02/29/12No. 33,482 State v.

Armendariz-Nunez COA 30,434 02/29/12No. 33,481 State v. Sharp COA 30,558 02/29/12No. 33,477 Lopez v. Ahlgrim 12-501 02/29/12 Response ordered; due 3/28/12No. 33,486 Ward v. Hatch 12-501 02/27/12No. 33,474 State v. Martinez COA 31,672 02/27/12No. 33,475 State v. Lyster COA 31,493 02/23/12No. 33,466 State v. Puliti COA 29,509 02/22/12No. 33,460 State v. Oscar H. COA 29,557 02/17/12 Response ordered; due 3/30/12No. 33,450 Krahling v. Hadden COA 31,909 02/15/12 Responsefiled3/5/12No. 33,396 State v. Bent COA 29,227 02/13/12 Response ordered; due 3/27/12No. 33,383 Starko Inc. v.

Presbyterian COA 29,016/27,992 02/13/12 Responsefiled3/7/12No. 33,384 Starko Inc. v.

Presbyterian COA 27,992/29,016 02/10/12 Responsefiled3/7/12No. 33,443 State v. Casas COA 31,086 02/09/12No.33,349 Statev.Griffin COA31,408 12/14/11

certiorari granted But not yet suBMitted to the court

(Parties preparing briefs) Date Writ IssuedNo. 32,742 State v. Martinez COA 30,637 01/31/11No. 32,804 State v. Servantez COA 30,414 02/07/11No. 32,895 State v. Gonzales COA 30,541 04/04/11

No. 33,001 State v. Rudy B. COA 27,589 06/08/11No. 33,014 State v. Crane COA 29,470 06/08/11No. 33,046 State v. Munoz COA 30,837 07/21/11No. 33,075 State v. Marchiondo COA 30,029 07/21/11No. 33,077 State v. Gonzales COA 28,700 08/05/11No. 33,133 Spencer v. Barber COA 29,390 09/09/11No. 33,143 State v. Owelicio COA 30,461 09/09/11No. 33,154 State v. Carillo COA 29,258 09/12/11No. 33,139 State v. Polson COA 31,138 09/20/11No. 33,134 Martinez v. Bustos 12-501 09/22/11No. 33,184 State v. Guthrie COA 29,863 10/03/11No. 33,203 State v. Davis COA 28,219 10/04/11No. 33,166 Christus St. Vincent Reg.

Med. Ctr. v. Duarte-Afara COA 30,343 10/12/11No. 33,147 Prather v. Lyons COA 29,812 10/25/11No. 33,216 Flores v. Henderson COA 31,295 10/25/11No. 33,217 State v. Ramos COA 29,514 10/25/11No. 33,224 Bank of New York v.

Romero COA 29,945 10/25/11No. 33,226 State v. Olsson COA 29,713 10/27/11No. 33,257 State v. Boyse COA 30,656/30,657 11/04/11No. 33,265 State v. Garcia COA 29,338 11/17/11No. 33,287 State v. Urioste COA 30,110 12/07/11No. 33,342 State v. Urquizo COA 30,337 01/06/12No. 33,332 Partida v. Motor Vehicle

Division COA 31,460 01/06/12No. 33,331 Strausberg v. Laurel

Healthcare COA 29,238 01/06/12No. 33,324 State v. Evans COA 31,331 01/06/12No. 33,322 Resource Lighting v.

Rohde COA 30,013 01/06/12No. 33,304 State v. Hardy COA 29,583 01/06/12No. 33,182 Moongate Water Co. v.

City of Las Cruces COA 27,889 01/09/12No. 33,362 Convisser v. Ecoversity COA 30,100 01/17/12No. 33,353 Flemma v.

Halliburton Energy COA 29,933 01/17/12No. 33,296 State v. Gutierrez COA 29,997 01/25/12No. 33,372 Schultz v.

Pojoaque Tribal COA 28,508 01/30/12No. 33,364 Nettles v. Ticonderoga COA 31,342 02/06/12No. 33,380 City of Rio Rancho v.

Palenick COA 30,136 02/06/12No. 33,382 NM Human Services v.

Starko, Inc. COA 29,016/27,922 02/13/12No. 33,375 State v. Cobrera COA 29,591 02/14/12No. 33,376 State v. Gonzales COA 29,843 02/16/12No. 33,441 State v. Torres COA 28,234 03/02/12No. 33,446 State v. Garcia COA 31,478 03/13/12No. 33,389 State v. Garcia COA 31,481 03/13/12


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

certiorari granted and suBMitted to the court

(Submission Date = date of oral argument or briefs-only submission) Submission DateNo. 32,524 Republican Party v. Taxation

and Revenue Dept. COA 28,292 03/14/11No. 32,534 Bustos v.

Hyundai Motor Co. COA 28,240 04/11/11No. 32,695 Diamond v.

Diamond COA 30,009/30,135 05/10/11No. 32,690 Joey P. v. Alderman-Cave

Milling & Grain Co. COA 29,120 05/11/11No. 32,756 Lenscrafters, Inc. v.

Kehoe COA 28,145 07/18/11No. 32,291 State v. Torres COA 29,603 08/16/11No. 32,589 State v. Ordunez COA 28,297 08/31/11No. 32,776 Sais v. N.M. Department

of Corrections COA 30,785 09/12/11No. 32,707 Smith LLC v. Synergy

Operating LLC COA 28,248/28,263 09/12/11No. 32,789 Chatterjee v. King COA 29,823 09/12/11No. 32,696 Herbison v. Chase Bank COA 30,630 09/13/11No. 32,483 State v. Jackson COA 28,657 09/28/11No. 32,697 State v. Amaya COA 28,347 09/28/11No. 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. 32,510 State v. Swick COA 28,316 10/12/11No. 32,713 Bounds v. D’Antonio COA 28,860 10/13/11No. 32,717 NM Farm and Livestock

Bureau v. D’Antonio COA 28,860 10/13/11No. 32,942 Schuster v. Taxation and

Revenue Dept. COA 30,023 11/14/11No. 32,704 Tri-State v.

State Engineer COA 27,802 11/14/11No. 32,915 State v. Collier COA 29,805 11/15/11No. 32,944 Freedom C. v. Brian D. COA 30,041 11/15/11No. 32,430 State v. Muqqddin COA 28,474 11/16/11No. 32,632 State v.

Dominguez-Meraz COA 30,382 11/16/11No. 32,941 Titus v.

City of Albuquerque COA 29,461 11/16/11No. 32,800 State v. Spearman COA 30,493 11/30/11No. 33,011 Felts v. CLK

Management, Inc. COA 29,702/30,142 12/12/11No. 33,013 Felts v. CLK

Management, Inc. COA 29,702/30,142 12/12/11No. 32,968 Sunnyland Farms, Inc. v.

Central N.M. Electric COA 28,807 12/12/11

No. 32,985 Helena Chemical Co. v. Uribe COA 29,567 12/13/11

No. 32,987 Helena Chemical Co. v. Uribe COA 29,567 12/13/11

No.32,937 SFPacificTrustv. City of Albuquerque COA 30,930 12/14/11

No. 32,876 Gonzales v. State 12-501 01/09/12No. 32,860 State v. Stevens COA 29,357 01/10/12No. 32,939 United Nuclear Corp. v.

Allstate Insurance Co. COA 29,092 01/30/12No. 33,070 Montoya v.

City of Albuquerque COA 29,838 01/30/12No. 33,023 State v. Gurule COA 29,734 01/30/12No. 33,135 Horne v. Los Alamos National Security COA 29,822 03/13/12No. 32,943 State v. Hall COA 29,138 03/26/12No. 32,605 State v. Franco COA 30,028 03/28/12No. 32,940 State v. Vest COA 28,888 03/28/12No. 33,083 Martinez v. Department

of Transportation COA 28,661 04/09/12No. 32,976 State v. Olson COA 29,010 04/09/12No. 33,008 State v. Lasky COA 28,782 04/11/12No. 33,136 State v. Bent COA 29,227 04/30/12No. 33,057 State v. Turrietta COA 29,561 04/30/12

petition for Writ of certiorari denied

Date Order FiledNo. 33,493 State v. Frierson 12-501 03/16/12No. 33,484 Jacobs v. Nance 12-501 03/16/12No. 33,476 Patscheck v. Hickson 12-501 03/16/12No. 33,438 Montano v. Hatch 12-501 03/16/12No. 33,468 State v. Tyler COA 31,615 03/15/12No. 33,467 State v. Cruz COA 27,292 03/15/12No. 33,464 State v. Duran COA 31,401 03/15/12No. 33,462 State v. Filfred COA 31,380 03/15/12No. 33,461 State v. Chavez COA 31,487 03/15/12No. 33,458 State v. Jackson COA 31,466 03/15/12No. 33,442 State v. Alba COA 31,233 03/15/12No. 33,453 State v. Carpenter COA 31,556 03/12/12No. 33,452 State v. Casey M. COA 29,860 03/12/12No. 33,440 State v. Casillas COA 30,437 03/12/12

Writ of certiorari Quashed

No. 33,161 Duran v. Carisbrook, Inc. COA 30,067 03/15/12

http://nmsupremecourt.nmcourts.gov


Published OPiniOns

Date Opinion FiledNo.30664 11thJudDistSanJuanYR-10-1,STATEvLETICIAT(affirminpart,reverseinpartandremand) 3/13/2012No.30670 11thJudDistSanJuanJR-10-87,STATEvCARLOSA(affirm) 3/13/2012

unPublished OPiniOns

No.30354 2ndJudDistBernalilloCV-09-830,BOAvEQUINTANA(affirm) 3/12/2012No.30534 12thJudDistLincolnCR-07-171,STATEvTSTEWARD(affirm) 3/12/2012No.30301 6thJudDistLunaCR-09-16,STATEvEFLORES(affirm) 3/13/2012No.30798 2ndJudDistBernalilloCR-08-4464,STATEvCVANWALTON(affirm) 3/13/2012No. 31832 11th Jud Dist San Juan CV-11-1327, K WEISNER v SAN JUAN COUNTY (dismiss) 3/14/2012No.30327 2nd Jud Dist Bernalillo DM-07-3882, H FINKELSTEIN v A FINKELSTEIN 3/16/2012 (affirminpart,reverseinpart,remand)No. 29244 2nd Jud Dist Bernalillo CR-06-3283, CR-07-3827, STATE v A MILLER (reverse in part, remand) 3/16/2012No.30712 8thJudDistTaosCR-09-49,STATEvSPADILLA(affirm) 3/16/2012

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 2, 2012

Clerk’s CertifiCate Of address and/Or

telePhOne Changes

Wayne Herbert BladhNordhaus Law Firm LLP1239 Paseo de PeraltaSanta Fe, NM 87501505-982-3622505-982-1827 (fax)[email protected]

Celeste H.G. BoydPO Box 524Southern Pines, NC 28388-0524505-501-8176815-550-2475 (fax)[email protected]

James V. CannizzoCamp Stanley Storage ActivityBldg. 60625800 Ralph Fair RoadBoerne, TX [email protected]

Elizabeth J. Church3113 Don Quixote Court NWAlbuquerque, NM 87104505-363-5869

Kristen Lockwood Cline4016 Amherst StreetHouston, TX [email protected]

Chris L. Conlee313 N. Wilson StreetRock Hill, SC [email protected]

Tracy Erin ConnerPO Box 23434Santa Fe, NM 87502-3434505-982-8201505-988-4538 (fax)[email protected]

Amanda N. Connor10740 GilespieLas Vegas, NV [email protected]

Jeanine S. Copperstone14837 SE Rupert DriveMilwaukie, OR [email protected]

Francie D. CordovaAHR Law Offices PC6707 Academy Road NE, Suite AAlbuquerque, NM 87109505-821-5122505-821-6868 (fax)[email protected]

Claudia Leigh Gayheart CrawfordAHR Law Offices PC6707 Academy Road NE, Suite AAlbuquerque, NM 87109505-821-5122505-821-6868 (fax)[email protected]

Jason Martin CroxtonShanker & Kewenvoyouma PLLC700 E. Baseline Road, Suite C1Tempe, AZ 85283480-428-4590480-223-6398 (fax)[email protected]

Joel Cruz-EsparzaOffice of the Attorney General111 Lomas Blvd. NW, Suite 120Albuquerque, NM 87102505-222-9035505-222-9033 (fax)[email protected]

Daniel T. DoughertyOffice of the District Attorney108 East PoplarDeming, NM 88030575-546-6526575-546-0336 (fax)[email protected]

Marx Michael ElmerGoldberg, Persky & White1030 Fifth AvenuePittsburgh, PA 15219412-471-3980412-471-8038 (fax)[email protected]

Mark J. Fidel7801 Academy Road NE, Suite 1-202Albuquerque, NM [email protected]

Thomas R. Figart1504 San Bonifacio ArcLas Cruces, NM [email protected]

Linda FischerN.M. Human Services Department2120 N. Alto, Suite 110Hobbs, NM 88240575-393-3247 Ext. [email protected]

N. Jean Fischer8 Upper San Pedro RoadEspanola, NM [email protected]

Timothy E. FlynnPO Box 142819 West Mesquite StreetDeming, NM 88031-0142575-544-0515575-544-0515 (fax)[email protected]

Latisha K. Frederick215 Adams Street NEAlbuquerque, NM [email protected]

James S. GibsonSquire Sanders (US) LLP1 E. Washington Street, Suite 2700Phoenix, AZ 85004602-528-4088602-253-8129 (fax)[email protected]

LaDonna L. GironOffice of the District AttorneyPO Box 1919Los Lunas, NM 87031-1919505-861-0311 Ext. 23135505-861-7016 (fax)[email protected]

Justin D. GoodmanKeller & Keller505 Marquette Avenue NW, Suite 1300Albuquerque, NM 87102505-938-2300505-938-2301 (fax)[email protected]

Jill Elise GrantNordhaus Law Firm LLP1401 K Street NW, Suite 801Washington, DC 20005202-530-1270202-530-1920 (fax)

Shari Thieman GreeneLynchard & Green PL1901 Andorra StreetNavarre, FL 32566850-936-9385850-936-9578 (fax)[email protected]

Rick N. HaderlieDewhirst & Dolven LLC607 28 1/4 Road, Suite 211Grand Junction, CO 81506970-241-1855970-241-1854 (fax)[email protected]

Sovereign HagerDNA - People’s Legal ServicesPO Box 987Shiprock, NM 87420-0987505-368-3207505-368-3212 (fax)[email protected]

William Nelson HendersonThe Henderson Law FirmPO Box 35546Albuquerque, NM [email protected]
























clerk’s certificates http://nmsupremecourt.nmcourts.gov.

M. Ryan HooverGordon Davis Johnson & Shane PC4695 N. Mesa Street, Suite 100El Paso, TX 79912-6149915-545-1133915-545-4433 (fax)[email protected]

Ofelia Infante-Garcia6907 E. NuthatchTucson, AZ 85750

Susan G. JordanNordhaus Law Firm LLP1239 Paseo de PeraltaSanta Fe, NM 87501505-982-3622505-982-1827 (fax)

Barry Hughes JoynerU.S. Department of LaborOffice of the Solicitor200 Constitution Avenue NW, Suite N-2119Washington, DC [email protected]

Karl F. KalmKalm Law Firm PC8338 Comanche Road NE, Bldg. BAlbuquerque, NM 87110505-299-5077505-299-5083 (fax)[email protected]

Constance R. Keegan5851 Anderson SE, #101Albuquerque, NM 87108-5416505-268-9750

Margaret E. KeenPO Box 86Montezuma, NM [email protected]

James La FataRose’s Southwest Papers, Inc.1701 Second Street SWAlbuquerque, NM 87102505-222-3408505-242-0342 (fax)[email protected]

Carol S. LeachConcho Resources, Inc.1048 Paseo de PeraltaSanta Fe, NM 87501505-780-8000505-780-8019 (fax)[email protected]

Katherine P. LeBlancPO Box 53Corrales, NM 87048-0053505-792-4182505-792-0655 (fax)[email protected]

Stephen T. LeCuyerMettler Law FirmPO Box 130Shiprock, NM 87420-0130575-358-5210575-358-4387 (fax)[email protected]

Teresa Isabel LegerNordhaus Law Firm LLP1239 Paseo de PeraltaSanta Fe, NM 87501505-982-3622505-982-1827 (fax)[email protected]

Andrew J. LeMieuxBeatty & Wozniak PC7440 South Creek Road, Suite 300Sandy, UT [email protected]

C. Joseph LennihanPO Box 231361012 Marquez Place, Unit 309A (87505-1697)Santa Fe, NM 87502-3136505-216-9300505-670-1602 (fax)[email protected]

L. Christopher LindeenOffice of the State EngineerPO Box 25102230 West Manhattan Street, Suite 300Santa Fe, NM 87504-5102505-827-3518505-827-3520 (fax)[email protected]

George P. Marquez, Jr.1400 Central Avenue SE, Suite 2300Albuquerque, NM 87106505-242-4415505-998-6628 (fax)[email protected]

Barbara L. MathisPegasus Legal Services for Children3201 Fourth Street NWAlbuquerque, NM 87107505-244-1101505-244-0060 (fax)

Mary M. McMahonOffice of the Public Defender506 S. Main Street, Suite 700Las Cruces, NM 88001575-524-6200575-524-6209 (fax)[email protected]

Mekko Mangas MillerNew Mexico Legal AidNative American ProgramPO Box 817Bernalillo, NM 87004-0817505-867-3391505-867-3644 (fax)[email protected]

Juan B. Montoya7740 Ridgeview Drive NWAlbuquerque, NM [email protected]

Flori J. NunezOffice of the District Attorney400 N. Virginia, Suite G-2Roswell, NM 88201575-622-4121575-624-0802 (fax)[email protected]

Daniel R. OlsenSellar, Hazard, Manning, Ficenec & Lucia1800 Sutter Street, Suite 460Concord, CA 94520925-938-1430925-256-7508 (fax)[email protected]

Thomas J. PeckhamNordhaus Law Firm LLP405 Martin Luther King Jr. Avenue NEAlbuquerque, NM 87102505-243-4275505-243-4464 (fax)

Marc Allan Reitman6601 Tennyson Street NE, #6108Albuquerque, NM 87111-8164505-323-2813505-332-2065 (fax)[email protected]

Sandra I. Schefcik105 Flower Lane DriveEstill Springs, TN 37330931-649-3867931-649-3410 (fax)

Rebecca Sitterly1801 Lomas Blvd. NWAlbuquerque, NM 87104505-238-5151505-766-9402 (fax)[email protected]

Jane Beth Wishner5901-J Wyoming Blvd. NE, #302Albuquerque, NM [email protected]

Deyonna Dale Young1011 Twentieth Street NWAlbuquerque, NM [email protected]

in MeMOriaM

As of February 14, 2012:David MeilleurPO Box 40143Albuquerque, NM 87196-0143

As of February 16, 2012:Harold T. MoorePO Box 2401Santa Fe, NM 87504-2401






















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


Pending PrOPOsed rule Changes OPen fOr COMMent:

Comment DeadlineNone

reCently aPPrOved rule Changes sinCe release Of 2012 nMra:

Effective Date

rules of civil procedure for the district courts

1-096 Challenge of nominating petition 03/01/121-030 Depositions pon oral argument 02/17/12 1-001 Scopeofrules;definitions 02/06/121-004 Process 02/06/12

rules of criMinal procedure for the district courts

5-502 Disclosure by the defendant 02/06/12

rules of criMinal procedure for the Magistrate courts

6-503 Disposition without hearing 01/31/12

rules of criMinal procedure for the Metropolitan courts


rules of procedure for the Municipal courts


criMinal forMs

9-104B Appearance, plea and waiver 01/31/12

rules of appellate procedure

12-603 Appeals in actions challenging candidates or nominating petitions; primary or general elections; school board recalls and recalls ofelectedcountyofficials 03/05/12

12-405 Opinions 03/01/1212-309 Motions effective 04/20/12

uJi–civil

13-832 Good faith and fair dealing 05/12/1213-2006 All jurors to participate 05/19/1213-2320 Special verdict form for wrongful

discharge cases 05/19/12

rules governing adMission to the Bar

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

rules governing discipline

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

subpoena power 04/05/1217-307 Investigation of complaints 04/05/1217-313 Hearings 04/05/12

rules governing the client protection fund

17A-005 Compositionandofficersofthe commission 01/01/12

rules of legal specialization

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

rules governing the recording of Judicial proceedings

22-101 Scope;definitions;title 01/27/1222-203 Application;qualifications;

renewalofcertification 01/27/1222-501 Examination standards 01/27/12

rules for revieW of Jsc27-401 Disposition 03/05/12

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

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


http://www.nmcompcomm.us

YLD • In Brief 1

YLD…In BriefThe Official Newsletter of the Young Lawyers Division of the State Bar of New Mexico March 2012

Message from the YLD Chair…

As I start my tenure as the 2012 YLD chair, I think of the saying, “Nobody can do everything, but everyone can do something.” As young lawyers, many of us get caught up in launching our new careers and lose

sight of why we entered this noble profession. We become overwhelmed carrying out the role of the “new associate,” the “new assistant district attorney,” the “new public defender,” the “new assistant city attorney,” or any of the other “new attorney” labels that exist within the practice of law. This is where I ask each YLD member to take a step back from the hustle and bustle of their emerging careers and remember that, “Nobody can do everything, but everyone can do something.”

The YLD consists of all State Bar members under the age of 36 as well as those who have been admitted to the practice of law in any state for five years or less. Any attorney that meets this criteria is automatically a member of the YLD without having to apply, join, or pay dues. The YLD is approximately 1,925 members strong, and I encourage each of you to “do something” for yourself and your community by participating in one of the many YLD programs or community service projects.

Some of the community service projects that the YLD will continue to develop in 2012 are Wills for Heroes, Serving Our Seniors, Junior Judges, and Law Day “Ask-a-Lawyer Call-In.” Please keep an eye out for announcements in the weekly State Bar E-News and Bar Bulletin regarding volunteer opportunities for these projects.

I am also proud to announce that the YLD, in continuing its commitment to public service, is implementing a new service project

By Samantha M. Hults

in conjunction with the ABA/YLD called, “Project Salute: Young Lawyers Serving Veterans.” Through this program, attorney volunteers educate veterans regarding available benefits and assist them in obtaining these benefits. The YLD launched this initiative at the Veterans Integration Center in Albuquerque March 10 with the aid of ABA YLD National Project Salute Director Tammy Kudailis on hand. I am very excited to implement this much-needed service in our state. Future clinics will be scheduled throughout the year in various locations. For more information or to participate, please feel free to contact me directly.

This year the YLD will redevelop its CLE program in order to meet the changing needs of its members. The YLD is sponsoring a CLE program this November entitled, “Reinventing Professional Services,” which will target young professionals practicing law in a digital market. Additionally, the YLD is currently working to rebuild the New Mexico Leadership Institute, which helps young lawyers identify, prepare and develop skills for leadership opportunities. I encourage all YLD members to take advantage of these programs and provide feedback for the future development of these resources.

Recently, the YLD, in conjunction with the New Mexico State Bar Foundation, hosted a talent show featuring members of our very own State Bar. From singing, dancing, playing the bag pipes, classical guitar, and performing stand-up comedy, the State Bar sure has talent! The event raised approximately $8,000 to fund the delivery of legal service to the needy, while providing a great night of food and entertainment for all in attendance. Congratulations to runner-up performers The Moondogs and competition winners Isaac Estrada, Robert Lucero, Maria Martinez, and Chris Melendrez for their amazing mariachi performance!

continued on page 4

YLD BOARDChair, Samantha Hults Chair-elect, Keya Koul

Vice Chair, Ben Sherman Immediate Past Chair, Ernestina R. CruzDirector-At-Large, Position 1, Keya Koul

Director-At-Large, Position 2, Mateo S. PageDirector-At-Large, Position 3, Robert Lara

Director-At-Large, Position 4, Ben ShermanDirector-At-Large, Position 5, Samantha Hults

Region 1 Director, Kenneth H. StalterRegion 2 Director, Joachim Biagi MarjonRegion 3 Director, Jared Garner KallunkiRegion 4 Director, Samantha Barncastle

Region 5 Director, Charles T. StollUNM Student Liaison, Lauren Gilmore

YLD SECTION LIAISONSAnimal Law, Tiffany Mercado

Appellate Practice, Kendrick DaneBankruptcy Law, Leslie Maxwell

Business Law, Elizabeth FriedensteinChildren’s Law, Tyson Hummell

Criminal Law, Matthew Legan SanchezElder Law, Kate Fitz Gibbon

Employment and Labor Law, Justin PooreFamily Law, Esteli Juarez Boyd

Health Law, Greg GambillIndian Law, Jenny Dumas

Intellectual Property Law Section, Kameron KramerNatural Resources, Energy and Environmental Law,

Sally PaezProsecutors, Aaron MartinPublic Law, Tania Shahani

Real Property, Trust and Estate, LaNatria JuristSolo and Small Firm, Andrea Gunderson

Taxation, James Burns Trial Practice, Amanda Lucero

YLD PROGRAM CHAIRSYLD CLE 2012:

Samantha Hults and Greg GambillLaw Day Call-in Programs 2012:

Albuquerque: Keya KoulFarmington: Ken Stalter and Mary Alvarado

Roswell: Jared Kallunki Las Cruces: David Lutz and Samantha Barncastle

Law Day Essay Contest (YLD Volunteer Coordinator):Robert Lara

In Brief: Tina CruzJunior Judges (began in 2006):

Matt Page and Tina Cruz YLD/UNM Law Mock Interview Program:

Samantha Hults, Matt Page, and Charlie StollSummer Fellowship Program (began in 2005):

Samantha HultsUNM Law/YLD Mentorship &

Speed Networking Program:Keya Koul, Ben Sherman, and Charlie Stoll

Wills for Heroes (began in 2008): Samantha Hults, Ben Sherman, Charlie Stoll

Voices Against Violence (began in 2009):Jared Kallunki, Matt Page, Charlie Stoll

and Samantha HultsServing our Seniors (began in 2011):

Matt Page and Samantha HultsProject Salute: Young Lawyers Serving Veterans

(began in 2012): Samantha Hults

Judicial Brown Bag Luncheon ProgramMartha Chicoski, Ken Stalter, Samantha Barncastle

2 YLD • In Brief

Meet the BoardSamantha Hults is the chair of the Young Lawyers Division of the State Bar of New Mexico. She is an assistant city attorney with the City Albuquerque. She formerly practiced at the Albuquerque office of Jackson Lewis LLP, a national labor and employment firm. Hults is a New Mexico native and a 2005 graduate of the University of New Mexico School of Law. She graduated from Occidental College

in Los Angeles, California, where she received a B.A. in Urban and Environmental Policy. Hults’ legal practice focuses on counseling and representing the city regarding labor and employment issues and related business matters. Her experience includes Title VII of the Civil Rights Act, the ADA, the ADEA, the FMLA, the City Labor Management Relations and Personnel Acts and other city, state and federal employment and labor laws. Hults also has a background in health care law, civil litigation and practices before administrative agencies.

Keya Koul is the chair-elect of the YLD board and director-at-large, position 1. She chairs the UNM Law School/YLD Mentorship Program, the Law Day Ask-A-Lawyer Call-in program in Albuquerque, and the Speed Networking event. She was the 2011 State Bar of New Mexico Outstanding Young Lawyer of the Year. Koul has a B.A. in Spanish with a minor in biology from Smith College, an M.A.

in medieval Spanish literature from UCLA, and a law degree from Southwestern Law School. She is the associate managing attorney in the Albuquerque office of Castle Stawiarski LLC and practices real estate and bankruptcy law. Koul is also the treasurer of the New Mexico Women’s Bar Association and an assistant editor on the American Bar Association Young Lawyers Division’s (ABA YLD) Affiliate Newsletter Team.

Ben Sherman is the vice chair and director-at-large, position 4, on the YLD board. He recently started Ben Sherman Law LLC, a law firm specializing in criminal defense and personal injury. Prior to opening his own firm, Sherman worked as an assistant city attorney for the Albuquerque City Attorney’s Office and as an assistant district attorney for the 2nd Judicial District Attorney’s Office. In 2010,

he was elected as a director-at-large of the Young Lawyers Division of the State Bar and currently serves as its vice chair. He has also served on the board of directors of the Criminal Law Section since 2009 and currently serves as its past-chair. Sherman is also an active member of the H. Vearle Payne American Inn of Court. He received his B.A. from Ohio State University and his J.D. from the University of New Mexico School of Law. He enjoys being active in the State Bar and giving back to the community, helping to strengthen and improve the legal community in which he practices. In his spare time, he enjoys playing recreational soccer and spending time with family and friends.

Ernestina “Tina” Cruz is the immediate past chair of the YLD. She has served as a member of the YLD board since 2007. She has coordinated events for the Wills for Heroes and Serving our Seniors public service projects and served as co-chair of the YLD’s Bar Preparation Program. She has volunteered for the YLD/UNM School of Law Mentorship, Junior Judges, and Mock

Interview programs. In 2009-2010, she was an ABA YLD General Practice/Solo Practitioner Scholar. She is currently a board member with the State Bar Committee on Diversity in the Legal Profession, Committee on Women in the Legal Profession, the Board of Bar Examiners, and the New Mexico Women’s Bar Association. She also is the immediate past chair of the State Bar Employment and Labor Law Section. Cruz obtained her B.A. from the University of New Mexico, M.A. from the University of Notre Dame, and law degree from the University of New Mexico School of Law. Before returning to Northern New Mexico, she was a partner at the Narvaez Law Firm in Albuquerque. She is the founder of Cruz Law Office LLC in Taos. In addition to her law practice, Cruz is a visiting assistant professor of Pre-Law at New Mexico Highlands University.

Ken Stalter is a prosecutor with the 11th Judicial District Attorney’s Office in San Juan County. His case load encompasses a range of felony cases, including violent, property, and financial crimes. He joined the D.A.’s office in 2010 after working in public finance and politics. In 2011, he was elected region 1 director of the YLD. Stalter received his B.A. from Cornell University and his J.D., cum

laude, from Harvard Law School. He is the region 1 director on the YLD board.

Joachim Marjon is an attorney with the State Office of the Public Defender in Santa Fe. He has worked for the Public Defender since he graduated from the University of New Mexico School of Law in 2009. While in law school, he was president of the ACLU’s UNM School of Law chapter and also clerked for the ACLU of New Mexico. Marjon graduated with a B.A. in Economics and Political Science

from the University of New Mexico in 2005. He also studied at the Instituto Tecnológico de Monterrey in Querétaro, México. He is very active in the Santa Fe community and spends much of his time making sure he stays abreast of community issues and concerns. He is also an avid runner, a past time he has continued to pursue since his days on the UNM Track and Cross Country teams. Marjon looks forward to his tenure on the YLD board in the position of region 2 director and hopes that he can add to the group and represent Santa Fe and Northern New Mexico by contributing his views on sex, politics and religion.

YLD • In Brief 3

Meet the BoardJared G. Kallunki is a sole practitioner in Roswell. He practices in a wide range of civil matters including family law, contracts, and civil litigation. He attended the University of Alabama and graduated with a B.A. in Political Science and an M.A. in International Relations and Comparative Politics. He earned his juris doctorate from the Thomas Jefferson School of Law. Kallunki serves on the Chaves County

Pro Bono Committee. He lives in Roswell with his wife of 14 years, Tiesha, and his three children. Kallunki is the region 3 director on the YLD board.

Samantha Barncastle, originally from Roswell, received her Bachelor of Arts in Government and Philosophy from New Mexico State University in 2007. She received her J.D., magna cum laude, from the University of New Mexico in 2010. Upon graduation, she became an associate attorney with the Law Office of Steven L. Hernandez, located in Las Cruces. She has a general civil litigation practice

with a heavy emphasis on natural resource litigation, specifically water issues. In addition to representing irrigation and conservancy districts throughout the state in water rights adjudications and other water rights related cases, she serves as the southern New Mexico representative on the board of directors for the New Mexico Chapter of the American Water Resources Association. Her other practice areas include contracts, property rights, and creditor rights. Barncastle is the region 4 director on the YLD board.

Charlie Stoll currently works for the 2nd Judicial District Attorney’s Office in Albuquerque, Domestic Violence Division. A graduate of the City University of New York School of Law in 2006, Stoll has worked for the New Mexico Child Support Enforcement Division as well as the District Attorney’s Office in San Juan County. Prior to moving to New Mexico in 2009, he resided in Alaska where he worked for the Public Defender Department in both the village of Kotzebue and the city of Anchorage. Today in his spare time he enjoys exploring the ruins of Chaco Canyon and Canyon de Chelly, skiing at nearby Taos Mountain, and reading about the great state of New Mexico and its rich and interesting history. Stoll represents region 5 on the YLD board.

Mateo “Matt” S. Page serves as director-at-large, position 2, on the YLD board. He has been an assistant district attorney for almost seven years, currently working in Torrance County where he prosecutes primarily DWI, domestic violence, and juvenile cases. He received his BA, summa cum laude, in political science from the University of New Mexico in 2000 and his law degree from the University

of Washington in Seattle in 2004. After completing law school and becoming a member of the Washington State Bar, Page returned home to New Mexico. He previously worked for a private firm practicing Indian law and environmental law, as a prosecutor in Lincoln and Bernalillo counties, and as a legislative analyst for the New Mexico House of Representatives Judiciary Committee. In addition to his work with YLD, Page is a school board member for the Moriarty-Edgewood School District, the immediate past president of the Moriarty Rotary Club, and actively involved with the Estancia Valley Catholic Parish. He lives in Moriarty with his wife of 11½ years, Heather, his three sons Royal, Lincoln, and Cotton, and his daughter Torrance.

Robert Lara serves as director-at-large, position 3, on the YLD board. He is currently the New Mexico finance director for the Martin Heinrich for U.S. Senate campaign and is currently on sabbatical from the law firm of Castle Stawiarski LLC, where he is an associate. Lara is originally from El Paso, Texas. He is a 2004 graduate of the University of Texas at El Paso, where he received a Bachelor

of Arts degree in Political Science, and is a 2007 graduate of the University of New Mexico School of Law. While in law school, he was awarded the Dean’s Award for Outstanding Service to the University in 2007. In addition he was awarded the Phi Alpha Delta Law Fraternity International Robert Redding Service Award in 2007 and the Outstanding Community Service Program Award in 2006 in recognition of his work on Gulf Coast Hurricane Relief. Lara currently serves as an officer on the boards of the UNM School of Law Alumni Association, the New Mexico Hispanic Bar Association, and Phi Alpha Delta Law Fraternity International-District V. His legal practice focuses on property law, administrative law, and election law where he represents various clients, organizations, political campaigns and candidates regarding the Federal Election Campaign Act, the New Mexico Election Code, and related business matters. In addition, he is a lobbyist on behalf of his clients at both the federal and state legislatures and agencies. His experience also includes working on national, state, and local campaigns. Outside of work, Lara enjoys advocating for the New Mexico Dachshund Rescue Association and spending time on a busy dance floor or with a good book.

4 YLD • In Brief

In addition, The YLD continues to provide outreach to students at the University of New Mexico School of Law by co-sponsoring the UNMSOL Mock Interview Program, Mentorship Program, Summer Fellowship Program, and Annual Speed Networking event. The YLD is grateful to all attorneys who continue to volunteer and make these programs a success and also thanks John Feldman, Bonnie Stepleton and Nancy Huffstutler at UNMSOL Career Services for helping to coordinate these events.

I encourage all YLD members and future members (law students) to take advantage of the opportunities provided by the Division to improve and sharpen their advocacy skills and advance their careers. I also encourage every member of the State Bar to take time out to enjoy and recognize members of our legal community. This can be accomplished by attending one of the many events hosted by the YLD or the State Bar.

Finally, as a person who knows that she “cannot do everything,” I would like to thank the members of the YLD board for providing their

ABA Midyear Meeting in New OrleansBy Keya Koul, YLD Vice Chair

State Bar of New Mexico Young Lawyers Division (YLD) board members Jared Kallunki and Keya Koul traveled to New Orleans for the 2012 American Bar Association Midyear Meeting in New Orleans. They were the New Mexico delegates to the American Bar Association Young Lawyers Division (ABA YLD) Assembly, the principal policy-making body of the ABA YLD. During the meeting, issues and resolutions which impact young lawyers are debated and voted upon. A new addition to the Assembly included a roll call of each state with a brief greeting specific to the state. Kallunki and Koul greeted the Assembly from the Land of Enchantment and asked the perennial question—Red or green?

The ABA YLD also helped over 60 veterans during an installation of the 2011-2012 ABA YLD public service project, Project Salute: Young Lawyers Serving Veterans. This public service project educates veterans on available benefits and assists them in the application process. The State Bar YLD held Project Salute: Young Lawyers Serving Veterans clinic on March 10 from 12:30 to 2:30 p.m. at

the New Mexico Veterans Integration Center.

On Saturday, a large delegation from New Mexico attended the Spirit of Excellence Awards Luncheon where Justice Petra Jimenez Maes was one of the award recipients. The Spirit of Excellence Awards recognize the efforts and accomplishments of lawyers and judges alike who work to promote a more racially and ethnically diverse legal profession. With great pride, the luncheon attendees heard

about Justice Maes’ life history, success in the judiciary, and her commitment to diversity in the legal profession.

Both Kallunki and Koul attended ABA YLD social events, including the YLD Dinner Dance at the Musée Conti Wax Museum and several CLEs on a variety of topics addressing substantive legal, diversity, and technology issues in the legal profession.

The Spring ABA YLD conference will be held in Nashville in May. More information can be found at http://www.americanbar.org/calendar/2012/05/yld_2012_spring_conference.html.

Message from the Chair continued from cover...

time, dedication and support in making the YLD a success. I would especially, like to thank Past Chair Tina Cruz for her contributions in 2011, including her implementation of the Annual YLD Board and Service Retreat. I also want to convey my enormous gratitude to all returning board members while welcoming five new board members: Samantha Barncastle, Robert Lara, Joachim Biagi Marjon, Kenneth Stalter and Charles Stoll. I look forward to working with you all.

On that note, just remember that although you may not be able to do everything, you can do something. I hope you will get involved and that I hear from you soon. The success of the YLD and its programs are largely reliant on your involvement and participation.

For more information, visit the YLD website at http://www.nmbar.org/AboutSBNM/YLD/YLD.html or contact Samantha Hults at [email protected].

Jared Kallunki, Levina Kim and Keya Koul in New Oreleans

http://www.americanbar.org/calendar/2012/05/yld_2012_spring_conference.html

http://www.americanbar.org/calendar/2012/05/yld_2012_spring_conference.html

http://www.nmbar.org/AboutSBNM/YLD/YLD.html

http://www.nmbar.org/AboutSBNM/YLD/YLD.html



rules/ordersFrom the New Mexico Supreme Court

http://www.nmcompcomm.us/

No. 12-8300-011

iN the Matter of aMeNDMeNts to UJi 13-832 NMra of the UNiforM JUry iNstrUCtioNs for Civil Cases

orDer

WHEREAS, this matter came on for consideration by the Court upon the recommendation of the UJI-Civil Committee to amend UJI 13-832 NMRA, and the Court having considered saidrecommendationandbeingsufficientlyadvised,ChiefJus-tice Charles W. Daniels, Justice Patricio M. Serna, Justice Petra Jimenez Maes, Justice Richard C. Bosson, and Justice Edward L. Chávez concurring: NOW, THEREFORE, IT IS ORDERED that the amendments to UJI 13-832 NMRA Civil are APPROVED; IT IS FURTHER ORDERED that the amendments to UJI 13-832 NMRA shall be effective May 12, 2012; and IT IS FURTHER ORDERED that the Clerk of the Court is authorized and directed to give notice of the above-referenced amendments by posting them on the New Mexico Compilation Commission web site ‹www.nmcompcomm.us/nmrules› and publishing them in the Bar Bulletin and NMRA. IT IS SO ORDERED. WITNESS, Honorable Chief Justice Charles W. Daniels

of the Supreme Court of the State of New Mexico, and the seal of said Court this 12th day of March, 2012.

_____________________________________________ Joey D. Moya, Chief Clerk of the Supreme Court of the State of New Mexico______________________________13-832. Good faith and fair dealing. In every contract, there is an implied promise of good faith and fair dealing. The implied promise protects the parties’ reasonable expectations under the contract. The implied promise is breached only when a party seeks to prevent the contract’s performance ortowithholdthecontract’sbenefitsfromtheotherparty.Theimplied promise of good faith and fair dealing does not change the express terms of the contract. It does not add terms to the contract. It does not prohibit the parties from doing what the contract expressly allows them to do. To prove that ________________ (name of the defen-dant) breached the promise of good faith and fair dealing, _________________ (name of the plaintiff) must prove that __________________(name of the defendant) acted in bad faith in [performing] [enforcing] the contract or wrongfully and inten-tionally used the contract to harm _________________(name of the plaintiff).[Adopted by Supreme Court Order No. 12-8300-011, effective May 12, 2012.]

USE NOTE If there is an at-will employment relationship, there is no covenant of good faith and fair dealing regarding termination and this instruction will not be given. See Melnick v. State Farm Mut. Auto. Ins. Co., 106 N.M. 726, 730, 749 P.2d 1105, 1109 (1998) (pointing out that New Mexico courts “do not recognize a cause of action for breach of an implied covenant of good faith and fair dealing in an at-will employment relationship”). If there is a factual issue as to whether an at-will employment relationship regarding termination exists, the jury will need to be instructed that the covenant of good faith and fair dealing does not apply if the jury determines the employment relationship was at-will. Under these circumstances, a special verdict form should be used to guide the jury. Committee commentary. — The New Mexico Supreme Court has held that this duty requires that “[w]hether express or not, every contract in New Mexico imposes the duty of good faith and fair dealing upon the parties in the performance and enforcement of the contract. Continental Potash, Inc. v. Freeport-McMoran, Inc., 115 N.M. 690, 706, 858 P.2d 66, 82 (1993). Although the courts have consistently stated that every contract contains an implied covenant of good faith and fair dealing, it may not be applied in an at-will employment relationship. See Melnick v. State Farm Mut. Auto. Ins. Co., 106 N.M. 726, 730, 749 P.2d 1105, 1109 (1998). “[T]he implied covenant of good faith and fair dealing cannot be used to overcome or negate an express term contained within a contract.” Sanders v. Fedex Ground Package System, Inc., 2008-NMSC-040, ¶ 8, 144 N.M. 449, 188 P.3d 1200 (citing Continental Potash, Inc., 115 N.M. at 707, 858 P.2d at 858). However, the implied covenant imposes on the parties the requirement “‘that neither party do anything that will injure therightsoftheothertoreceivethebenefitoftheiragreement.’” Sanders v. Fedex Ground Package System, Inc., 2008-NMSC-040, ¶ 7 (quoting Bourgeous v. Horizon Healthcare Corp., 117 N.M. 434, 438, 872 P.2d 852, 856 (1994)). Put in more positive terms, the “implied covenant of good faith and fair dealing protects the reasonable expectations of the parties to a contract arising from its terms.” Id. ¶ 1. In this sense, one function of the covenant is “to enforce the spirit of deals.” Id. ¶ 9. “The breach of this covenant requires a showing of bad faith or that one party wrongfully and intentionally used the contract to the detriment of the other party.” Continental Potash, Inc., 115 N.M. at 706, 858 P.2d at 82; see also Jaynes v. Strong-Thorne Mortuary, Inc., 1998-NMSC-004, ¶ 13, 124 N.M. 613, 954 P.2d 45 (same). Thus, some degree of culpable conduct is required to constitutebadfaith.“Althoughnegligentconductisnotsufficientto constitute a breach of the covenant,” Jaynes, 1998-NMSC-004, ¶ 13, (citing Paiz v. State Farm Fire and Cas. Co., 118 N.M. 203, 213, 880 P.2d 300, 310 (1994)), when “the breaching party is consciously aware of, and proceeds with deliberate disregard for, the potential harm to the other party” such conduct is suf-ficienttoconstituteabreach.Id. New Mexico Stat. Ann. § 55-1-203 (1978) imposes a duty of good faith in the performance of all contractual obligations governed by the Uniform Commercial Code. [Adopted by Supreme Court Order No. 12-8300-011, effective May 12, 2012.]


http://www.nmcompcomm.us/nmrules%E2%80%BA


advance opinions http://www.nmcompcomm.us/

froM the neW Mexico supreMe court and court of appeals

Certiorari Not Applied For


Opinion Number: 2012-NMCA-023

Topic Index:

Appeal and Error: Standard of ReviewAttorneys: Fees, General

Civil Procedure: Estoppel; Summary Judgment; and WaiverCommercial Law: Attorney Fees; and Unfair Practices Act

Federal Law: Attorney Fees

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

Plaintiffs-Appellants, and

NEW MEXICO ATTORNEY GENERAL, Plaintiff, versus

MICHAEL J. GOPIN, Defendant-Appellee.

No. 29,850 (filed January 19, 2012)

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

opinion

Michael d. BustaMante, Judge

1 Plaintiffs prevailed in their Unfair Practices Act (UPA) action against De-fendant. NMSA 1978, §§ 57-12-1 to -26 (1967, as amended through 2009). As a consequence, they were entitled to an award of attorney fees. Section 57-12-10(C). The district court refused to apply a multiplier factor to the lodestar fee it approved, concluding that New Mexico only allows multipliers in class actions and “common fund” situations. Disagreeing, we reverse and remand for reconsideration of Plaintiffs’ request.

KYLE W. GESSWEINLas Cruces, New Mexico

PHILLIP B. DAVISAlbuquerque, New Mexico

for Appellants

J. MONTY STEVENSEl Paso, Texas

KAREN E. WOOTTONCARRILLO LAW FIRM, P.C.Las Cruces, New Mexico

for Appellee

I. BACKGROUND2 Plaintiffs won partial summary judg-ment, including judgment that Defendant had violated the UPA. Subsequently, the parties agreed to settle the lawsuit for approximately $5200 plus attorney fees. The order provided that “Defendant shall pay the [n]amed Plaintiffs’ attorney fees, the amount of which will be agreed upon by counsel for the [n]amed Plaintiffs and Defendant within ten days, or failing such agreement, the amount of attorney fees shall be decided by the [c]ourt.” 3 The parties could not agree on an amount for the attorney fees, and Plain-tiffsfiledamotiontoawardattorneyfees.Plaintiffs requested an hourly rate of $195

per hour plus tax. Using this rate, Plaintiffs calculated that fees of $35,759.10 were owed. In addition, Plaintiffs requested a multiplier of 1.5. The district court awarded Plaintiffs $39,608.40 in attorney fees but denied Plaintiffs’ request for a multiplier. The court based its denial of the multiplier onafindingthat“[u]nderNewMexicostatelaw irrespective of [Tenth] Circuit cases, a multiplier for attorney fees in fee-shifting cases such as the case at bar is limited to class actions and common fund cases.” II. DISCUSSION4 Plaintiffs argue that the district court erred as a matter of law by refusing to consider the use of a multiplier in award-ing attorney fees. They seek remand for a new determination of allowable fees in which all relevant factors, including whether contingency risk warranted the use of a multiplier, are considered. De-fendant counters that use of a multiplier under these circumstances is “without precedent” and contrary to federal law. A. The District Court May Consider

a Multiplier in UPA Cases5 A plaintiff who prevails under the UPA is entitled to recover attorney fees. Section 57-12-10(C). The UPA does not limit the fees in any way. Id. We review the award of attorney fees for abuse of discretion, but we review de novo whether this decision was based on a misapprehen-sion of the law. See N.M. Right to Choose/NARAL v. Johnson, 1999-NMSC-028, ¶¶ 6-7, 127 N.M. 654, 986 P.2d 450. 6 Although the UPA imposes no limita-tions on attorney fees, the fees requested must be reasonable. See Jones v. Gen. Mo-tors Corp., 1998-NMCA-020, ¶ 24, 124 N.M. 606, 953 P.2d 1104. “Historically, New Mexico courts have also used the factors now found in Rule 16-105 of the Rules of Professional Conduct to examine the reasonableness of attorney fees.” In re N.M. Indirect Purchasers Microsoft Corp., 2007-NMCA-007, ¶ 76, 140 N.M. 879, 149 P.3d 976. These factors include:

(1) the time and labor required, thenoveltyanddifficultyofthequestions involved, and the skill requisite to perform the legal service properly;(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;



(3) the fee customarily charged in the locality for similar legal services;(4) the amount involved and the results obtained;(5) the time limitations imposed by the client or by the circum-stances;(6) the nature and length of the professional relationship with the client;(7) the experience, reputation, and ability of the lawyer or law-yers performing the services; and(8) whether the fee is fixed or contingent.

Rule 16-105(A) NMRA (emphasis added). “The factors are not of equal weight, and all of the factors need not be considered.” Microsoft, 2007-NMCA-007, ¶ 78. 7 One way of arriving at a reasonable fee is the “lodestar” method, which was the method chosen by the court in this case. See Rivera-Platte v. First Colony Life Ins. Co., 2007-NMCA-158, ¶ 78, 143 N.M. 158, 173 P.3d 765 (recognizing the district court’s discretion to use either the percentage of recovery method or the lodestar method to calculate attorney fees). In this method, the court determines a fee that approximates a reasonable hourly rate multiplied by the number of hours reasonably incurred in the representa-tion. See Perdue v. Kenny A. ex rel. Winn, 130 S. Ct. 1662, 1672 (2010). This value serves as a starting point for the calcula-tion of a reasonable fee. Microsoft, 2007-NMCA-007, ¶ 34. The lodestar method is “ordinarily used in statutory fee-shifting cases because it provides adequate fees to attorneys who undertake litigation that is socially beneficial.” Id. “An award based on a lodestar may be increased by amultiplier if the lowercourtfinds thata greater fee is more reasonable after the court considers the risk factor and the results obtained.” Id. 8 We have previously applied a reason-ableness standard to attorney fees under the UPA. See Jones, 1998-NMCA-020, ¶ 24. In Jones, the district court denied an in-dividualplaintiff’sUPAclaim,findingthathe could not recover because he had failed to prove damages. Id. ¶ 22. We reversed, noting that the statute allowed recovery of the greater of damages or $100. Id. ¶¶ 23, 26. We further held that, in addition to the statutory damages of $100, the plaintiff was “entitled to reasonable attorney fees and costs,” including the costs of his appeal. Id. ¶ 24. Two policies supported this decision: enabling individual plain-

tiffs to pursue their claims, however small, and encouraging individuals to enforce the UPA on behalf of the general citizenry. See id. ¶ 25. Accordingly, even though the plaintiff was only entitled to $100 of statu-tory damages, the allowable attorney fees were“notnominal[,but]shouldreflectthefull amount of fees fairly and reasonably incurred by [the p]laintiff in securing an award under the UPA.” Id. Absent this incentive, prospective plaintiffs might havedifficultypursuingtheirclaimsandenforcing the UPA on behalf of the public. Id.9 The district court erred in conclud-ing that it could not consider the use of a multiplier in this case. As we have ob-served, the UPA contains no limitation on the award of attorney fees. Jones, which allowed attorney fees to be awarded to an individual in a UPA case, emphasized that even when the damage award was small,theattorneyfees“shouldreflectthefull amount of fees fairly and reasonably incurred” by the prevailing plaintiff. Id. Rule 16-105, which our cases have looked to for guidance regarding the reasonable-ness of attorney fees, see Microsoft, 2007-NMCA-007, ¶ 76, includes “whether the feeisfixedorcontingent.”Rule16-105(A)(8). Furthermore, we have previously approved of the use of a multiplier. See, e.g., Microsoft, 2007-NMCA-007, ¶¶ 34, 75 (condoning the use of a multiplier in a lodestar calculation used as a cross-check of a percentage of recovery award). In some cases, multipliers may be necessary to ensure that plaintiffs can enforce their rights under the UPA. See Perdue, 130 S. Ct. at 1673 (rejecting “any contention that a fee determined by the lodestar method may not be enhanced in any situation” and recognizing that there may be circum-stances in which “the lodestar does not adequately take into account a factor that may properly be considered in determin-ing a reasonable fee”). That we have not yet explicitly approved of the use of a mul-tiplier outside of the class action or “com-mon fund” setting is not authority for the district court’s conclusion that a multiplier should not be considered outside of those contexts. See Sloan v. State Farm Mut. Auto. Ins. Co., 2004-NMSC-004, ¶ 12, 135 N.M. 106, 85 P.3d 230 (“[C]ases are not authority for propositions not considered.” (alteration in original) (internal quotation marks and citation omitted)). Accordingly, we hold that the district court has discre-tion to apply a multiplier to the lodestar value. See Microsoft, 2007-NMCA-007, ¶¶ 73-75 (holding that the district court did

not abuse its discretion when, in using the lodestar method as a cross-check against the percentage method used, the court ap-plied a multiplier to enhance the lodestar); see also Ketchum v. Moses, 17 P.3d 735, 746 (Cal. 2001) (“[T]he trial court is not required to include a fee enhancement to the basic lodestar figure for contingentrisk, exceptional skill, or other factors, although it retains the discretion to do so in the appropriate case. . . .”).B. Defendant’s Other Arguments Are

Not Persuasive10 Defendant’s other arguments against the use of a multiplier are unavailing. First, Defendant argues that federal cases precluded the district court from applying a multiplier except in rare or exceptional circumstances. However, the cases cited by Defendant involve the interpretation of federal fee-shifting statutes not at is-sue in this case. See Perdue, 130 S. Ct. at 1669-70 (discussing fee-shifting un-der 42 U.S.C. § 1988 (2000)); City of Burlington v. Dague, 505 U.S. 557, 559 (1992) (discussing fee-shifting under 42 U.S.C. § 6972(e) (1984) and 33 U.S.C. § 1365(d)(1987)).Defendantidentifiesnoreason why we are bound by these cases in interpreting the UPA, nor can we perceive one. See Dague, 505 U.S. at 562 (noting that United States Supreme Court case law relates to “federal fee-shifting statutes”). 11 Defendant does point to language that “[a]n enhancement may not be award-ed based on a factor that is subsumed in the lodestar calculation.” Perdue, 130 S. Ct. at 1667. Defendant contends the risk of non-payment is included in the lodestar. Plaintiffs maintain that the lodestar rate was the fee counsel “normally charges in non-contingent matters as his lodestar.” We decline to decide this factual question inthefirstinstance.Wesimplynotethat,to the extent that the lodestar rate does not take into account the factors that justify a multiplier, the district court has discretion to apply a multiplier in a UPA case.12 Second, Defendant claims that Plaintiffs affirmativelywaived the rightto ask for a multiplier by not asking for it prior to the execution of the settlement agreement. At that time, Plaintiffs had indicated to Defendant that attorney fees amounted to $38,242. But Defendant, in the stipulated order of partial dismissal, didnotagreetopaythisoranyotherfixedamount. Instead, he agreed that fees would be litigated if the parties could not agree toaspecificamountwithintendays.13 A waiver is “the intentional relin-quishment or abandonment of a known


right.” J.R. Hale Contracting Co. v. United N.M. Bank at Albuquerque, 110 N.M. 712, 716, 799 P.2d 581, 585 (1990). It may be express or implied. Id. at 716-17, 799 P.2d at 585-86. Additionally, waiver by estoppel is present where a party’s actions reasonably lead the other party to believe waiver has occurred and that other party is prejudiced by the belief. Id. at 717, 799 P.2d at 586.14 Plaintiffs did not waive their right to ask for a multiplier. Defendant does not explain how the record shows, explicitly or implicitly, that Plaintiffs abandoned their right to pursue a multiplier. Based on our review of the record, and in particular the stipulated order of partial dismissal, we conclude that it does not. Nevertheless, Defendant asserts that he was “reason-ably misled” by Plaintiffs’ statement that

attorney fees amounted to $38,242 and that this constituted waiver by estoppel. We disagree. We do not believe that such a statement, made during settlement nego-tiations and with the knowledge that fees would be litigated if no agreement was reached, could reasonably be viewed as the abandonment of the right to ask for a multiplier should the settlement negotia-tions prove unsuccessful.15 Third, Defendant argues that, had the district court applied a multiplier, it would have abused its discretion. However, since the district court has yet to apply a multi-plier, we decline to consider this argument.C. Plaintiffs Are Entitled to Attorney

Fees16 Finally, Plaintiffs have also request-ed that we award attorney fees for this appeal. Our cases have repeatedly stated

that awards of appellate attorney fees are appropriate in UPA cases. See, e.g., Jones, 1998-NMCA-020, ¶ 24. Accordingly, on remand, the district court should award to Plaintiffs the reasonable attorney fees and costs of this appeal.III. CONCLUSION17 For the foregoing reasons, we re-mand for the district court to make a new determination of attorney fees, including fees for this appeal, to be awarded to Plaintiffs.18 IT IS SO ORDERED. MICHAEL D. BUSTAMANTE,

JudgeWE CONCUR:JONATHAN B. SUTIN, JudgeRODERICK T. KENNEDY, Judge


Certiorari Not Applied For


Opinion Number: 2012-NMCA-024

Topic Index:

Appeal and Error: Substantial or Sufficient EvidenceCommercial Law: Fraud; and SecuritiesConstitutional Law: Double Jeopardy

Criminal Law: Fraud; Racketeering; and Securities OffencesCriminal Procedure: Double Jeopardy; Final Order; Habitual Criminal; Judgment and Sentence; Jury Instructions; Plea and Plea Bargaining;

Prior Convictions; Reinstatement of Proceedings; Restitution; Sentencing; Substantial or Sufficient Evidence; and Suspended Sentence

Evidence: Prior Convictions or JudgmentsJury Instructions: Criminal Jury Instructions; and Failure to Give or Request

STATE OF NEW MEXICO,Plaintiff-Appellee,

versusMICHAEL SOUTAR,

Defendant-Appellant.No. 28,167 (filed February 10, 2012)

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTYMICHAEL E. VIGIL, District Judge

opinion

celia foy castillo, chief Judge

1 Convicted of racketeering and several state securities violations, Michael Soutar (Defendant) now appeals his convictions. He challenges the court’s revocation of his plea deal, the nature of the jury instruc-tions,andthesufficiencyandadmissionofevidence used to convict him. For reasons explainedbelow,weaffirm.I. BACKGROUND2 Defendant was tried and convicted of multiple violations of the New Mexico Securities Act of 1986, NMSA 1978, Sec-tions 58-13B-1 to -57 (1986, as amended through 2003) (repealed 2009), and one count of racketeering in violation of

GARY K. KINGAttorney General

MARGARET E. MCLEANAssistant Attorney General

JOEL JACOBSENAssistant Attorney General

Santa Fe, New Mexicofor Appellee

JACQUELINE L. COOPERChief Public Defender

ELEANOR BROGANAssistant Appellate Defender

Santa Fe, New Mexicofor Appellant

NMSA 1978, Section 30-42-4 (2002). These convictions arose out of Defen-dant’s formation of Santa Fe International Development, a Limited Liability Com-pany (the LLC), under which Defendant operated a business called the Santa Fe Market (the Market).3 Defendant acted as general manager of the Market and advertised it as a facility near the Plaza in Santa Fe where artists could lease space, sell their products, and keep eighty-five percent of their proceeds, relinquishing the remainder to the Market. Defendant attracted several investors who bought interests in the LLC through investment contributions. These investmentsweresignificant,intherangeof $25,000 and up.4 The Market failed, and the inves-

tors lost all of their money. The victims alleged that they had been defrauded. Defendant was indicted in December 2004 on nine counts of securities violations for unlawfully selling interests in the LLC, one count of racketeering based on the securities violations, and numerous other charges including escape from jail, forg-ery, and fraud.5 Defendant entered into plea negotia-tions with the State. He represented that he had $125,000 at his disposal from a third party and informed the State that he was willing to provide this money to the victims as an initial lump-sum restitution payment if an acceptable plea agreement was reached. Defendant further indicated that, if no plea was reached and Defendant was required to stand trial, this money would have to be put toward the costs of his defense. Defendant also informed the district court of the existence of these funds and his desire to compensate the victims as part of a plea agreement.6 In October 2006, a plea hearing was held, and the district court accepted and entered a plea and disposition agreement. The agreement included a provision requiring Defendant to make restitution butdidnotspecificallyreferencealump-sum payment. Defendant agreed to plead no contest to three counts of fraudulent practices in connection with the sale of se-curities, one count of escape from jail, and one count of racketeering. Immediately after accepting the agreement, the district court proceeded to orally sentence De-fendant. The sentence imposed—twelve years’confinementwithallbutthreeyearssuspended, entitlement to good time, and a five-year probationary period—was consistent with the terms of the agreement.7 Seventeen days after the plea hearing, theStatefileda“motionforreconsidera-tion of sentence or to withdraw [the] plea.” The State alerted the court to the fact that Defendant had failed to live up to his com-mitment to make restitution.8 At the hearing on that motion, Defen-dantconfirmedthathewaseitherunableor unwilling to make an initial lump-sum payment. The district court informed De-fendant that the only reason it had accepted the plea was because it understood that the terms of the agreement required Defendant to make restitution and that restitution involved a substantial, initial lump-sum payment. Defendant responded that, while the plea agreement did include a restitution provision, it did not include any reference to a lump-sum payment. Defendant fur-ther argued that double jeopardy and other


legal principles precluded the court from withdrawing the plea or altering the orally imposed sentence. The court disagreed, withdrew the plea, and ordered Defendant to stand trial.9 At the close of trial, Defendant pro-posed several instructions that the court denied. Defendant was convicted of one count of racketeering and three counts each of fraudulent practices in connection with the sale of securities in violation of Section 58-13B-30; selling unregistered securities in violation of Section 58-13B-20; and selling securities without a license in violation of Section 58-13B-3. He was sentencedtoeighteenyears’confinementfor these offenses and an additional sixteen years’confinementasahabitualoffenderfor a total period of thirty-four years’ confinement.II. DISCUSSION10 On appeal, Defendant raises five issues. He asserts that the oral sentence the court imposed under the plea agree-ment was final and binding and that double jeopardy precluded the court from ordering him to stand trial. Second, he contends that the district court abused its discretion when it ordered the plea agree-ment withdrawn and claims that “after the court accepted the plea agreement[,] it was bound by its terms to sentence [him] to the negotiated sentence.” He maintains that the plea agreement did not require him to make an initial lump-sum payment, yet the district court granted the State’s request to withdraw the agreement due to his inability to make that payment. Third, he claims two errors regarding the court’s denial of his proposed jury instructions. Fourth, he challenges the sufficiencyofthe evidence underlying his convictions. Fifth,andfinally,heassertsthatthecourterred in admitting evidence of his prior bad acts. We address these issues in turn.A. Double Jeopardy11 “We generally review double jeop-ardy claims de novo.” State v. Rodriguez, 2006-NMSC-018, ¶ 3, 139 N.M. 450, 134 P.3d 737. The Double Jeopardy Clause of the United States Constitution guarantees that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb[.]” U.S. Const. amend. V. However, “[i]n order to successfully claim double jeopardy, a former jeopardy must have occurred—there must have been a previous proceeding in which jeopardy at-tached.” State v. Angel, 2002-NMSC-025, ¶ 7, 132 N.M. 501, 51 P.3d 1155. Here, Defendant acknowledges that jeopardy did not attach when the court accepted his

plea. See id. ¶ 13 (holding that jeopardy does not attach upon a court’s acceptance of a guilty plea). Rather, he argues that jeopardy attached at the oral sentencing. We disagree.12 Our Supreme Court has previously recognized that “jeopardy attaches when the court enters a judgment and imposes a sentence on the guilty plea.” Id. ¶ 10. This is because entry of judgment and sentence carrieswithitan“expectationoffinality.”Id. ¶ 15.

[T]he analytical touchstone for double jeopardy is the defen-dant’s legitimate expectation of finality in the sentence,whichmaybeinfluencedbymanyfac-tors such as the completion of the sentence, the passage of time, the pendency of an appeal or review of the sentencing determination, or the defendant’s misconduct in obtaining the sentence.

State v. Hardesty, 915 P.2d 1080, 1085 (Wash. 1996) (en banc).13 In our view, Defendant could not have formed an expectation of finalityin the oral sentence. An oral sentence isnot“afinaljudgmentandissubjecttochange until reduced to writing.” State v. Rushing, 103 N.M. 333, 334, 706 P.2d 875, 876 (Ct. App. 1985). As such, our Supreme Court has explained that “a trial court’s oral announcement of a result is not final,andpartiestothecaseshouldhavenoreasonableexpectationofitsfinality.”State v. Lohberger, 2008-NMSC-033, ¶ 20, 144 N.M. 297, 187 P.3d 162. Defen-dant acknowledges this law, but directs us to State v. Porras, 1999-NMCA-016, ¶ 14, 126 N.M. 628, 973 P.2d 880, where we held that the defendant had a reason-able expectation of finality in an oral pronouncement of sentence because the defendant had begun serving his sentence. For the reasons that follow, Porras is inap-plicable here.14 As the State observes, Defendant has done nothing to explain how he began serving his sentence after the oral sentence was imposed beyond simply stating that he did so. See Santa Fe Exploration Co. v. Oil Conservation Comm’n, 114 N.M. 103, 108, 835 P.2d 819, 824 (1992) (stating that where a party fails to cite any portion of the record to support its factual allega-tions, appellate courts need not consider its argument on appeal). More critically, the oral sentence arose out of the plea agree-ment and, as we explain in the following section of this Opinion, Defendant made representations about making an immedi-

ate lump-sum restitution payment, a basis upon which the district court accepted the agreement. Later, Defendant either could not or would not provide that payment. Defendant could not have formed an expectationoffinalityinanoralsentenceimposed pursuant to a plea agreement, the terms of which he either could not or would not keep. See Rushing, 103 N.M. at 335, 706 P.2d at 877 (holding that the defendant had no reasonable expectation offinalityinasentenceobtainedthroughmisrepresentations at the time of sentenc-ing). This conclusion is in line with other authorities. Cf. Brown v. State, 367 So. 2d 616, 623 (Fla. 1979) (“We hold, therefore, that the [D]ouble [J]eopardy [C]lause does not bar the reprosecution of an ac-cused who willfully refuses to perform a condition of a guilty plea which has been accepted by the trial court on that basis.”); 22 C.J.S. Criminal Law § 286 (2011) (“The Double Jeopardy Clause does not bar reprosecution of an accused individual who willfully refuses to perform a condi-tion of a guilty plea.”).15 We conclude that double jeopardy principles did not preclude the district court from ordering Defendant to stand trial. Double jeopardy did not attach at the time of the oral sentencing. Thus, the district court’s decision to require Defendant to stand trial did not implicate double jeopardy concerns. We turn now to the plea agreement and explain in greater detail why the court did not err in agreeing to withdraw the plea.B. Withdrawal of the Plea Agreement16 Because the oral sentence was not final,we review the district court’s de-cision to withdraw the plea only for an abuse of discretion. See State v. Hunter, 2005-NMCA-089, ¶ 20, 138 N.M. 96, 117 P.3d 254 (“A district court exercises its discretion when deciding whether to permit a pre-sentence plea withdrawal, and we review the court’s ruling to de-termine whether, under the facts offered in support of the motion, the trial court abused its discretion.” (internal quotation marks and citation omitted)), aff’d, 2006-NMSC-043, 140 N.M. 406, 143 P.3d 168. “A court abuses its discretion when it is shown to have acted unfairly, arbitrarily, or committed manifest error.” Id. (internal quotation marks and citation omitted).17 “A plea agreement is a unique form of contract the terms of which must be interpreted, understood, and approved by the trial court.” State v. Mares, 119 N.M. 48, 51, 888 P.2d 930, 933 (1994). “In re-viewing and interpreting the agreement a


court should construe the terms according to what [petitioner] reasonably understood when he entered his plea.” Id. (alteration in original) (internal quotation marks and citation omitted).18 Defendant’s plea agreement in-cluded the following provision: “[D]efendant agrees to make restitution on all charges. . . .” Our review of the record reveals that all parties—Defendant, the district court, and the State—understood this provision to require Defendant to make an initial and immediate lump-sum restitution payment. At the plea hearing, the court informed Defendant that the court’s primary concern was to ensure that the victims of Defendant’s crimes received maximum restitution. Jail time, the court explained, did little to achieve thatobjective,andthecourthadsignificantdoubts about Defendant’s ability to make incremental payments over time. The court believed that the plea agreement, as the court understood it, satisfactorily addressed its primary concern because it entailed Defendant making a substantial and immediate lump-sum payment. The Court’s understanding that the restitu-tion provision in the agreement entailed a lump-sum payment was not based on surmise or assumption but on Defendant’s representations.19At the plea hearing—specifically,during plea recommendations and before the court accepted the plea—Defendant made the following statements:

Defense Counsel: Your honor, we, we, basi-cally have spent a lot of time in trying to get this hammered out. I think that . . . [the plea is] a good resolution for everybody. We are, you know, we have the means over, you know, over the time period, to make the restitution. The intention has always been to make a, an initial lump-sum kind of based on . . . what the funds are available. I mean it’s true, all the way back in January or February I made it clear that there was a finiteamountofmoneyandthatit was impossible to both . . . try the case, and lawyer the case out, and pay restitution.The Court: What’s the ballpark figurethat you are talking about as far as an initial lump sum?Defense Counsel: You know, I need to speak with the person. I mean, you

know, basically what we’re look-ing at in terms of an initial lump sum would have been the original amount we had thrown out there was $125,000, but as time has gone along and there have been lawyer fees and everything else that cuts into the initial lump sum, and I just don’t know what that is right now.

This excerpt refutes Defendant’s conten-tionthat“[t]hefirstmentionofaninitiallump-sum restitution payment came after the plea agreement had been accepted by the court.” After accepting the plea, thedistrictcourtgaveDefendantspecificinstructions regarding the lump-sum pay-ment:

The Court: Now this is what I want you to do. Between now and the time this case is over, so you now are under an obligation to make res-titution.Defendant: Yes sir.The Court: Between now and the time you deal with Arizona, I want to see you through your lawyer try to access that money that you talked about and get that paid.Defendant: Okay. Can I say something? The money that he talked about was last December that we came up with the money. There’s been horrendous expense over the last year. And we discussed this up front because I wanted to get the money. That’s the money I wanted to get back in their pock-ets.Defense Counsel: But there’s nonetheless . . .The Court: There is some available?Defendant: Oh, sure, absolutely your honor.The Court: I don’t want you to wait on making that payment. . . . In other words, tomorrow I want you to start your efforts. I know it’sdifficultfromjail,butthroughyour lawyer I want you to start your efforts in getting that money transferred so that restitution can be made, immediately. I mean, if you go to Arizona, and they give you another three months there

for your felony there, I don’t want these people to have to wait anotherfivemonths.Defendant: I understand.The Court: So you start immediately.Defendant: I understand. That’s my whole intention.

20 This interchange demonstrates that the plea agreement was premised on the understanding that Defendant would make a substantial and immediate lump-sum restitution payment. While this is not spe-cificallystatedintheagreement,therecordsupports the conclusion that Defendant reasonably understood that the restitu-tion provision that is in the agreement entailed this type of lump-sum payment. Defendant was either unable or unwilling to make that payment and, thus, was un-able to honor the terms of the agreement. The court did not abuse its discretion in withdrawing the plea.C. Jury Instructions21 Defendant next claims that the district court committed reversible error in denying several of his proposed jury instructions. We review each claimed error in turnbutfirstestablishourstan-dard of review. “The propriety of jury instructions given or denied is a mixed question of law and fact.” State v. Lucero, 2010-NMSC-011, ¶ 11, 147 N.M. 747, 228 P.3d 1167 (internal quotation marks and citation omitted). “[W]e review any fac-tual questions under a substantial evidence standard[,] and we review the application of law to the facts de novo.” State v. Neal, 2007-NMSC-043, ¶ 15, 142 N.M. 176, 164 P.3d 57 (internal quotation marks and citation omitted). “An appellate court reviews challenged jury instructions to determine whether they correctly state the law and are supported by the evidence introduced at trial.” Gonzales v. N.M. Dep’t of Health, 2000-NMSC-029, ¶ 28, 129 N.M. 586, 11 P.3d 550. “It is not error for a trial court to refuse instructions which are inaccurate.” State v. Salazar, 1997-NMSC-044, ¶ 57, 123 N.M. 778, 945 P.2d 996. Our review also involves deciding “whether a reasonable juror would have been confused or misdirected by the jury instruction.” State v. Cunningham, 2000-NMSC-009, ¶ 14, 128 N.M. 711, 998 P.2d 176 (internal quotation marks and citation omitted). It is not error for a court to refuse an instruction that is confusing or misleading. State v. Skipworth, 64 N.M. 175, 178, 326 P.2d 669, 670-71 (1958).


“[J]uror confusion or misdirection may stem not only from instructions that are facially contradictory or ambiguous, but from instructions which, through omission or misstatement, fail to provide the juror with an accurate rendition of the relevant law.” State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134.22Defendantfirstarguesthatthedis-trict court erred in denying his proposed instructiondefining the term“security.”We review the facts underlying this claim. As noted, Defendant was charged with multiple securities violations including three counts of fraudulent practices in connection with the sale of securities, three counts of selling unregistered securi-ties, and three counts of selling securities without a broker’s license. One essential element common to all of these offenses is that “[D]efendant sold a security.” Defen-dant proposed an instruction purportedly defining“security”;thesuggestedinstruc-tion read as follows:

Essential Element of“Security”Defined

Foryoutofind[D]efendantguiltyof fraudulent practices in securi-ties as charged in Count I, the State must prove beyond a rea-sonable doubt all of the elements that show that the instrument [D]efendant sold was a security.An ownership interest in an LLC is a security if it is: 1. An investment; 2. In a common enterprise; 3. With the expectation of

profit;and 4. To be derived through

the essential managerial efforts of someone other than the investor;

5. Unless context requires otherwise.

Here, a “common enterprise” means an enterprise in which the fortunes of the investor are interwoven with and dependent upon the efforts and successes of those seeking the investment or of a third party;OR 1. An investment by which

an offeree furnishes initial value to an offeror;

2. A portion of this initial value is subjected to the risks of the enterprise;

3. The furnishing of the initial value is induced by the offeror’s promises or

representations; 4. Which give rise to a rea-

sonable understanding that avaluablebenefitofsomekind over and above the initial value will accrue to the offered;

5. As a result of the operation of the enterprise; and

6. The offeree does not re-ceive the right to exercise practical and actual con-trol over the managerial decisions of the enterprise;

7. Unless context requires otherwise.

Each transaction must be ana-lyzed on the basis of the content of the instruments in question, the purposes intended to be served, and the factual setting as a whole.The law provides that “context requires otherwise” where the parties have a unique agreement, the instruments do not have equivalent value to most persons, the instruments could not be traded publicly, and the purchaser is motivated by a desire to use or consume an item purchased.Ifyoufindthat“contextotherwiserequires” then the instrument is notasecurity,andyoumustfind[Defendant] not guilty of fraudu-lent practices in securities.

The Court denied this instruction and, after consulting with the parties and reviewing UJI14-4310NMRA(defining“security”),issued the following instruction:

A “security” is a [sic] owner-ship right or a creditor relation-ship and includes any investment contract and a limited liability company interest. 1. Any investment contract

means a contract: a. Where an individual

invests his money; b. In an undertaking or

venture of two or more people or entities;

c. With an expectation of profit;

d. Based primarily on the efforts of others.

2. A limited liability compa-ny interest means a mem-ber’s or assignee’s right to receive distributions and a return of capital from the limited liability company[;]

3. Unless the context requires otherwise.

An investment is the use of capi-tal or money to create more money.

Defendant claims that the “court commit-ted reversible error when it denied [his] tenderedinstructiononthedefinitionofasecurity.” We disagree.23 We agree with the State’s assessment that Defendant’s proposed instruction is both misleading and unclear. Although theinstructionistitled“securitydefined”,the instruction does not actually definethe term. Rather, it purports to identify the circumstances under which an interest in a limited liability company constitutes a security. Moreover, the bulk of the instruction focuses not on the meaning of “security,” but on the meaning of “common enterprise.” Finally, the sheer breadth of the instruction is troubling. We conclude that the instruction had great potential to misdirect and confuse the jury. See State v. Barber, 2004-NMSC-019, ¶¶ 19-20, 135 N.M. 621, 92 P.3d 633; State v. Rodarte, 2011-NMCA-067, ¶¶ 11-14, 149 N.M. 819, 255 P.3d 397, cert. denied, 2011-NMCERT-005, 150 N.M. 666, 265 P.3d 717; Berry v. Fed. Kemper Life As-surance Co., 2004-NMCA-116, ¶ 79, 136 N.M. 454, 99 P.3d 1166.24 Moreover, the proposed instruction is not a correct statement of the law. In the definitionssectionoftheNewMexicoSe-curitiesActof1986,“security”isdefinedas follows: “unless the context requires otherwise, ‘security’ means . . . any interest in a limited liability company[.]” Section 58-13B-2(X). There is no dispute that De-fendant sold interests in a limited liability company. The statute provides that such an interest constitutes a security, unless the context requires otherwise.25 Defendant emphasizes the phrase “unless the context requires otherwise” and asserts that a jury must apply the “investment contract test” set out in S.E.C. v. W.J. Howey Co. (Howey), 328 U.S. 293 (1946) to determine whether an interest in a limited liability company is a security under the New Mexico Securi-ties Act of 1986. In Howey, the United States Supreme Court examined the scope ofthedefinitionof“security”inthefed-eral Securities Act of 1933, 15 U.S.C. §§ 77a to 77aa (1933, as amended through 2000). Howey, 328 U.S. at 294. The federalactexpresslydefined“security”toinclude an investment contract. Howey, 328 U.S. at 297. The issue before the Court was whether a land sales contract, a warranty deed, and a service contract


together constitute an investment contract. Id. The Court answered this question in theaffirmativeand,indoingso,adoptedwhat Defendant refers to as the “invest-ment contract test” so as to bring within the ambit of that Act the “many types of instruments that in our commercial world fall within the ordinary concept of a security.” Id. at 299 (internal quotation marks and citation omitted). Defendant’s argument that Howey and the investment contract test are relevant here ignores sig-nificantdifferencesbetweenthedefinitionof “security” in the federal Securities Act of 1933 and the New Mexico Securities Act of 1986.26 As stated above, the New Mexico statutedefinesaninterestinalimitedli-ability company as a security, unless the contextrequiresotherwise.Thedefinitionunder the federal statute is substantially different, in that it expressly includes in-vestmentcontractsinitsdefinition.Withthis difference in mind, we fail to see how Howey and the federal Securities Act of 1933 offer any guidance here. In addi-tion, we have previously held that the term “security” in the New Mexico Securities Act of 1986 was intended to be construed broadly and that it is error to advocate a construction that narrows its applicabil-ity. State v. Sheets, 94 N.M. 356, 360, 610 P.2d 760, 764 (Ct. App. 1980). Such a narrow construction is precisely what Defendant advocates here. We recognize thattheNewMexicostatutedefinitional-lows consideration of the context, and our analysis should not be understood as an attempt to strip the phrase “unless the con-text requires otherwise” of any meaning. We simply conclude that this language does not have the meaning Defendant suggests—i.e., that the court was required to instruct the jury that it was to apply the investment contract test stated in Howey to determine whether the interests in the LLC that Defendant sold were securities.27 We conclude that the district court did not err in denying Defendant’s instruc-tiondefining“security.”Thatinstructionwas both confusing and legally inaccurate.28 Defendant’s second argument is that the court wrongly denied his proposed instructions relating to the charges of the sale of unregistered securities. As noted, Defendant was charged with three counts of selling unregistered securities in viola-tion of Section 58-13B-20. This statute provides the following:

It is unlawful for a person to offer to sell or sell any security in New Mexico unless:

A. the security is registered under the New Mexico Securities Act of 1986 [Chapter 58, Article 13B NMSA 1978];

B. the security or transac-tion is exempt under that act; or

C. the security is a federal covered security.

Section 58-13B-20(B). The district court issued three identical instructions, one for each of the three counts charged, setting out the elements of the crime of selling unregistered securities. The court’s in-struction precisely tracks the language of the uniform instruction for this offense. See UJI 14-4301 NMRA. The instruction the court issued states:

Foryoutofind[D]efendantguilty of the sale of unregistered securities, as charged in Count[s] 2 [5, and 8], the State must prove to your satisfaction beyond a reasonable doubt each of the fol-lowing elements of the crime: 1. [D]efendant sold a secu-rity; 2. The security was required by the state securities law to be registered with the State of New Mexico prior to the sale; 3. The security was not reg-istered as required by the state securities law; 4. This happened in New Mexico on [various dates].

29 Defendant proposed an elements instruction that differed from this instruc-tion and the UJI in that it included as an essential element, adding a requirement that “[t]he sale of the security was not an exempt transaction[.]” He also proposed an instruction setting out what constitutes an “exempt transaction”. This instruc-tion informed the jury that if it found Defendant sold securities in the course of exempt transactions, it must acquit him of the crime of selling unregistered securi-ties. This latter instruction was based on UJI 14-4321 NMRA, which courts are instructed to issue if a defendant alleges an exempt sale, and Section 58-13B-27(K), which governs the circumstances under which the sale of a security “by a limited liability company” constitutes an exempt transaction.30 The district court denied both instructions. The court observed that Defendant’s proposed elements instruc-tion deviated from the UJI and further noted that Defendant was not entitled to

the other instruction because the issue of exemption was never raised at trial. On appeal, Defendant claims this ruling was in error. He argues that he was entitled to any instruction for which there was suf-ficientevidenceandthatfailuretoinstructa jury on a defendant’s theory of the case is reversible error.31Wefindnoerrorinthedistrictcourt’sdecision to reject Defendant’s elements instruction. “When a uniform jury instruc-tion exists, that instruction must be used withoutsubstantivemodification.”State v. Caldwell, 2008-NMCA-049, ¶ 24, 143 N.M. 792, 182 P.3d 775. As to the district court’s decision to reject Defendant’s instruction definingwhat constitutes anexempt transaction, we observe that De-fendant correctly states the rules regarding a defendant’s entitlement to instructions. See State v. Gaines, 2001-NMSC-036, ¶ 6, 131 N.M. 347, 36 P.3d 438 (“As a general proposition a defendant is entitled to an instruction as to any recognized defense forwhichthereexistsevidencesufficientforareasonablejurytofindinhisfavor.”(internal quotation marks and citation omitted)); State v. Trammel, 100 N.M. 479, 481, 672 P.2d 652, 654 (1983) (“When evidence at trial supports the giving of an instruction on a defendant’s theory of the case, failure to so instruct is reversible error.”). However, as the district court ob-served, at trial Defendant did not advance the theory that the securities at issue were sold during an exempt transaction. The record amply demonstrates this point.32 The court expressed surprise when it learned Defendant was requesting an instruction on the exempt transaction is-sue and stated “[b]ut you’re not claiming that.” Defendant responded, “Actually, we are.” The court replied, “I didn’t hear any evidence of that” and then posed the fol-lowing question to Defendant: “I thought the only evidence we received was that this was not a security; not that it was an exempt security.” Defendant responded “I think Your Honor is characterizing correctly the gist of our defense at trial.” Nevertheless, Defendant insisted that “I do think there’s facts to support the exemp-tion” and that “there’s enough information on this record for us to give the defense to the [j]ury.” The court disagreed and responded that Defendant “didn’t argue [that point] at all in his opening” and further stated that Defendant failed to ask the expert witnesses any questions aboutwhether the transaction qualifiedas exempt. The State agreed and noted its opposition to the inclusion of the exemp-


tion issue in the instructions. The court concluded by stating, “I think there’s no evidence to support that [exemption] was ever an issue raised by anybody” and therefore denied the instruction that definedexempttransactions.33 Defendant conceded that his trial theory was exclusively that the interests sold were not securities. This concession adequately supports the district court’s determination that the issue of exemp-tion was not raised at trial. Having failed to raise the issue of exemption at trial, Defendant is not entitled to an instruc-tion on the issue. See State v. Skippings, 2011-NMSC-021, ¶ 10, 150 N.M. 216, 258 P.3d 1008 (“A defendant is entitled to an instruction on his or her theory of the case.” (internal quotation marks and citation omitted)); State v. Boyett, 2008-NMSC-030, ¶ 12, 144 N.M. 184, 185 P.3d 355 (“Failure to instruct the jury on a defendant’s theory of the case is reversible error only if the evidence at trial supported giving the instruction.”). We hold that the court did not err in denying Defendant’s proposed instruction setting out what constitutes an exempt transaction.D. SufficiencyoftheEvidence34 Defendant next claims that “[t]herewasinsufficientevidencetosupport[his] convictions.” Hefirst challengesthe evidence related to the nine securi-ties convictions and then addresses the evidence related to his racketeering conviction. We address his arguments in turn and start with standard of review. “When evaluating the sufficiency of evidence to support a conviction, we view the evidence in the light most favorable to the [s]tate, resolvingallconflictsandindulging all permissible inferences to uphold a verdict of conviction.” State v. Castillo, 2011-NMCA-046, ¶ 24, 149 N.M. 536, 252 P.3d 760 (internal quotation marks and citation omitted), cert. denied, 2011-NMCERT-004, 150 N.M. 648, 264 P.3d1171.“Wemeasurethesufficiencyofthe evidence against the jury instructions.” Id.35 A closer examination of Defendant’s sufficiencyargumentsrelatedtohissecu-rities convictions reveals that Defendant repeats an argument he has previously made. He argues for the second time that the phrase “unless the context requires otherwise” in the definitionof the term“security” in the New Mexico Securities Act of 1986 required the jury to apply the investment contract test set out in Howey to determine whether the LLC interest Defendant sold was a security. Defendant

claims that the jury was not so instructed and did not perform this analysis. As such, he claims that the evidence was insufficienttosupportthesecuritiescon-victions. We have already determined that the Howey test and the federal statute from which it is derived are inapposite here. Weproceedtothesufficiencyargumentsconcerning the racketeering charge.36 The jury was instructed that the es-sential elements of racketeering include the following:

1. . . . Defendant was associ-ated with an enterprise, namely, The Santa Fe Market. 2. While associated with that enterprise, . . . Defendant intentionally, and, directly or indirectly, participated or con-ducted the affairs of the enter-prise by engaging in a pattern of racketeering activity. 3. The pattern of racketeering activity includes two or more of the crimes of: A. Securities Fraud as

charged in Counts 1, 4, and 7;

4. This happened in New Mexico on or between December 17, 2003, and April 22, 2004.

Defendantfirstarguesthatifwefindin-sufficientevidencetosupportDefendant’sconvictions for fraudulent practices in connection with the sale of securities, we must vacate the racketeering conviction. We have rejected Defendant’s contention thatthereisinsufficientevidencetosup-port his varying securities convictions. This argument is unavailing.37 Defendant then argues that the State failed to prove “the existence of an enter-prise with which [Defendant] associated.” We disagree. The New Mexico Racketeer-ingActdefinestheterm“enterprise”as“asole proprietorship, partnership, corpora-tion, business, labor union, association or other legal entity . . .” NMSA 1978, § 30-42-3(C) (2009) (emphasis added). A limited liability company is a legal entity. See Martinez v. Roscoe, 2001-NMCA-083, ¶ 7, 131 N.M. 137, 33 P.3d 887 (“Statecourtshavealsorequiredartificiallegal entities, including limited liability companies, to be represented by a licensed attorney.”). We are persuaded that there wassufficientevidencetoestablishDefen-dant associated with an enterprise; namely, the Santa Fe Market. We proceed to the finalissueonappeal.E. Evidentiary Issue38 Citing Rule 11-404(B) NMRA,

Defendant contends that the court erred in allowing the State to “introduce evidence of his prior convictions, some of which were [more] than ten years old.” The State responds that we need not reach the merits of this claim because Defendant failed to adequately develop it. We agree with the State.39 This portion of Defendant’s brief does not explain the factual underpinnings of his argument. See Muse v. Muse, 2009-NMCA-003, ¶ 72, 145 N.M. 451, 200 P.3d 104 (“We will not search the record for facts, arguments, and rulings in order to support generalized arguments.”). Our independent review of the record reveals thatDefendantfiledamotiontoexcludeevidence of convictions and prior bad acts not related to fraud, and a motion to exclude evidence of convictions and prior bad acts more than ten years old. Defendant has not explained what the court decided regarding these motions or what evidence of his prior convictions was admitted.40 Moreover, we observe that Defen-dantalsofiledamotiontolimitreferencesto his prior convictions to fact of convic-tion and crime. There, he concedes that his prior fraud and forgery convictions are admissible, notwithstanding Rule 11-404(B), as evidence of these convictions is an essential element of the three counts of fraudulent practices in connection with the sale of securities with which he was charged. Defendant has not explained how wearetomakesenseoftheseconflictingmotions. In addition, we observe that evidence of prior bad acts “is admissible under Rule [11-404(B)] if it is probative of a material element at issue.” State v. McGhee, 103 N.M. 100, 104, 703 P.2d 877, 881 (1985).41 We hold that Defendant has not sufficientlydevelopedthecontentionthatthe district court admitted evidence in violation of Rule 11-404(B). We decline to further review the matter. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (declining to entertain a cursory argument that relied on several factual assertions that were made without citation to the record).CONCLUSION42 Fortheforegoingreasons,weaffirmDefendant’s conviction on all counts.43 IT IS SO ORDERED. CELIA FOY CASTILLO,

Chief JudgeWE CONCUR:MICHAEL D. BUSTAMANTE, JudgeLINDA M. VANZI, Judge


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MCLE 2011 Annual Compliance Reports

The 2011 Annual Compliance Reports have been mailed to all active licensed New Mexico attorneys. The reports include all information for courses taken by 12/31/11.

All non-compliant attorneys have been assessed a late compliance fee, and the invoice for payment of the fee is included with the Annual Report. Non-compliant attorneys must complete their requirements immediately. On April 1, 2012 a second late compliance fee will be assessed for those attorneys who continue to be in non-compliance.

On May 1, 2012 the MCLE office will submit to the Supreme Court a list of all attorneys who have not completed their 2011 requirements and/or failed to pay assessed late compliance fees. The Supreme Court will then begin to initiate the suspension process for those attorneys on the list. For more information, call MCLE at (505) 821-1980; e-mail [email protected], or write to MCLE, PO Box 93070, Albuquerque, NM 87199.

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

For more advertising information, contact:

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SUBMiSSioN DeADliNeS





poSitionS

claSSified

Assistant District AttorneyThe Fifth Judicial District Attorney’s office has immediate positions open to a new or experienced attorney. Salary will be based upon the District Attorney Personnel and Compensation Plan with starting salary range of an Associate Trial Attorney to a Senior Trial Attorney ($50,000.00 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].

AttorneyMontgomery & Andrews is accepting applica-tions for a position in its Santa Fe office. The position is for an attorney with a minimum of 6 to 10 years of experience, and applicants should have significant experience in employment law. All inquiries shall be kept confidential. Please send a cover letter and resume to Montgomery & Andrews, Attn: Hiring Partner, P.O. Box 2307, Santa Fe, New Mexico, 87504-2307. E-mail responses may be submitted to [email protected].

Lawyer-A Position Santa FeThe NM Human Services Department, Office of General Counsel seeks to fill a Lawyer-A position in Santa Fe. This position requires a Juris Doctor and five (5) years experience in the practice of law in one or more of the following areas: administrative law, benefits programs, drafting or review of contracts, rulemaking, legislation or representation of a public agency. Specialized knowledge in health care law is de-sired. Applicant must be licensed to practice in New Mexico, be in good standing and have no history of professional disciplinary actions. Sal-ary ranges from $20.70/hr to $36.80/hr. Previ-ous applicants must resubmit an application to be considered for the position. To apply: Access the website for the NM State Personnel Office (SPO); www.spo.state.nm.us Click on Apply for a State Government Job. The State of New Mexico is an Equal Opportunity Employer.

One Full Time and One Part Time AttorneyThe offices of Jay Goodman and Associates Law Firm PC is seeking one full time and one part time attorney to represent clients at our Santa Fe Office. Candidates must be licensed and in good standing with over 7 years’ experience in Family Law, Probate, Estate Planning, Guard-ianships, and/or Civil Litigation. Strong writ-ing, research, computer, and litigation experi-ence required. All replies will be maintained as confidential. Send resume and references to [email protected].

Notice of Faculty Position in Area of Legal Research and Writing University of New Mexico School of LawThe University of New Mexico School of Law invites applications for a regular or visiting full-time (9 mos.), non-tenure track faculty position to begin in August 2012. This Lecturer III position will teach in the Law School’s Legal Research and Writing Program. Candidates must possess a J.D. degree and two years of full-time law practice experience. For best con-sideration, applicants should apply by April 1, 2012. The position will remain open until filled. For complete information, visit the UNMJobs website: https://unmjobs.unm.edu/. The posi-tion is listed as posting number 0814700. The University of New Mexico is an Affirmative Action/Equal Opportunity Employer.

Children, Youth and Families Master Attorney PositionThe Children, Youth and Families Department is seeking to fill a vacant Children’s Court Attorney Master Position. Salary range is $43-$76K annually, depending on experience and qualifications. The attorney will represent the Department in abuse/neglect and termination proceedings and related matters. The ideal candidate will have experience in the practice of law totaling at least five years and New Mexico licensure is required. Educational requirement: Juris Doctor degree from an ac-credited School of Law. Incumbent will provide advanced level professional legal services for protective services cases in context of litiga-tion and providing counsel, interpretation of law, research and legal analysis to Protective Services staff within the region. Incumbent is responsible for assisting other children’s court attorneys in complex or high profile cases and/or assuming responsibility for such cases throughout the state. The position will be lo-cated in Carlsbad, New Mexico. Consideration will be given to housing the position anywhere in the region: Roswell, Clovis, Portales, Artesia, Hobbs, Tucumcari and Carlsbad, New Mexico. Benefits include medical, dental, vision, paid vacation, and a retirement package. The State of New Mexico is an EOE. This position will close April 13, 2012. To apply for this position go to www.state.nm.us/spo/. For information on submitting applications, please contact: Debbie Houston, Legal Administrator, at (575) 742-3923 or [email protected] or Jon D. Hendra, Managing Attorney for Region IV Children’s Court Attorney at 575-628-6130 or [email protected] .

Town AttorneyThe Town of Taos is seeking qualified appli-cants for the position of Town Attorney. The successful applicant must possess a license to practice law in the State of New Mexico, a Juris Doctor degree from an accredited college or university; plus other advanced training in business administration, or public administra-tion; AND should have eight (8) years of pro-gressively responsible legal experience of which three (3) years experience in public government is preferred; OR an equivalent combination of education and experience. A complete copy of the job description is available by calling Anna at 575-751-2009 or by e-mail at [email protected]. Interested applicants please submit a detailed letter of introduction along with a complete resume that lists at least three professional references, to: Human Resources Director, Town of Taos, 400 Camino de la Placita, Taos, NM 87571. For questions re-garding the application process please contact Loretta Trujillo Human Resources Director at 575-737-2632. For questions related to the duties of this position, please contact Abigail Adame, Interim Town Manager at 1-575-751-2002. Applications will be accepted until the position is filled.

In-House CounselHealth Care Service Corporation, a Mutual Legal Reserve Company that does business as Blue Cross and Blue Shield in four states has an Assistant General Counsel opening in its Legal Division in Albuquerque, NM: BASIC FUNCTION: This position is responsible for: providing legal advice, support, and coordina-tion on complex legal matters or projects with a high degree of independence; operating as a business advisor to divisional leadership in or-der to meet executive level needs; representing the Company in interactions with applicable regulatory bodies,government agencies and third parties with which the company does business; and working collaboratively with others in the Legal Division. JOB REQUIRE-MENTS: 1) Juris Doctor Degree and a license to practice law in New Mexico. 2) At least 10 years of experience as an attorney, including 3 years of experience in another corporate law department, or in private practice directly related to health care law and/or insurance law3) Clear and concise verbal and written com-munication skills. 4) Negotiation and diploma-cy skills. 5) Experience working independently on complex legal matters. We offer an exciting opportunity to bring your skills and talents to a premier health & wellness organization. We offer great benefits package, bonus program, work & family balance, a diverse workplace and much more! We are an Equal Opportunity Employer dedicated to workforce diversity and a drug-free and smoke-free workplace. Drug screening and background investigation are required as a condition of employment. Please apply online by going to: www.bcbsnm.com.

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office Space

Great Location—Great Price— One or Two OfficesFurnished or Unfurnished. Cubicles for assis-tants, reception area, conference room, kitchen and state of the art telephones and internet. Receptionist services & indoor parking avail-able. NM Bank & Trust Building (4th & Gold) Both for $975 or large corner office for $675 or smaller $475 Call 505-235-8854.

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DWI PreventionA merican Limousine, 505- 604-3392 , www.NewMexicoLimos.com

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Attention Foreclosure Attorneys:Experienced Court Appointed Receiver. Re-sponsible for Assets up to $12 Million. Com-mercial Realtor/Developer since 1970. Larry Levy 505.263.3383 or [email protected]. References Available.

Legal Assistant/ParalegalLegal Assistant/Paralegal with exp. needed for busy, growing Law Firm. Must multi-task & be able to thrive in a high volume fast paced practice. Good Salary & Benefits (holiday, vacation, sick, health, dental, retire plan & more). Submit in conf. cover letter& resume to [email protected]

Full Time PositionsReceptionist and ParalegalWilliam F. Davis & Assoc., P.C. a law firm lo-cated in North East Albuquerque, is accepting applications for two full time positions. Our practice consists primarily of bankruptcy pro-ceedings and general business and commercial litigation. Our firm offers competitive salary, excellent benefits and positive work environ-ment. Positions are available immediately. RECEPTIONIST – must be proficient in word processing/computer skills, organizational & communications skills, with a positive and friendly personality as necessary in a high-volume, fast-paced practice requiring direct interaction with clients. Opportunity to prog-ress into Paralegal duties and pay level. Salary in accordance with experience and education. PARALEGAL – prepare correspondence to clients and attorneys; draft pleadings and amendments, file pleadings with the court, draft and submit orders, assist with prepara-tion of bankruptcy petition, statements and schedules, maintain office calendar, answer telephones and route all calls and messages as backup to Receptionist. Please send resume via email to: [email protected] and state the position you are applying for in the subject text.

Legal Secretary/AssistantSmall (three attorneys) law firm between downtown and UNM needs legal assistant/secretary part or full time. Candidate should have previous experience, strong computer and administrative skills. Interest and familiarity with employment, civil rights, special educa-tion law preferred. Please email resume and references to [email protected] or fax to 245-8558.

Progressive Attorney WantedEntry-level attorney needed for busy, exciting, non-profit practice representing low-income homeowners in foreclosure cases. Need an organized, hard-working, enthusiastic lawyer with good research and writing skills. Civil litigation exp. preferred. Requirements: NM Bar membership, ability to travel. Send re-sume, letter of interest and short writing sample to: [email protected]. Non-profit level salary incl. medical, dental and retirement benefits.

Need Help In Your Office?25+ years experience - Legal Asst/Paralegal du-ties. Meet or request Resume/Portfolio packet.Short/long-term. Call Hope: 505/850-9040

Experienced ParalegalNew Mexico Legal Group, P.C. is seeking an experienced criminal law paralegal. Qualified candidates should have a minimum of 3 years experience providing high levels of support to supervising attorneys. Candidates must be proficient in Microsoft Office (Word, Excel, Power Point, and Outlook). Excellent work environment, competitive salary based on ex-perience, health insurance, and 401K benefits provided. Send cover letter and resume to [email protected], or call (505) 843-7303.

Special Assistant County Attorney Position ProfileBernalillo County is conducting a search for candidates for the Special Assistant County Attorney position. Appointed by and reporting to the County Attorney for a term employment period of one year. Will be responsible for serv-ing as legal counsel and advisor for Bernalillo County in the area of processing and collecting delinquent accounts for the Solid Waste Depart-ment. Requires a J.D. or L.L.B. degree from an accredited academic institution with a valid li-cense to practice law in the State of New Mexico. Must have demonstrated “good standing” with the New Mexico State Supreme Court. Two (2) years experience in the practice of law which in-cludes preparation of pleadings, litigation, appel-late experience and the coordination of multiple assignments relating to litigation and advising clients on issues of legal compliance. Must have knowledge of law and concepts relevant to the collection of delinquent accounts. Ability to prepare, draft, file and prosecute complaints in Metropolitan and District Courts to pursue collection of delinquent accounts. The On-line Application Process can be accessed at website www.bernco.gov/alljobs/. Applications are also available at the Bernalillo County Human Resources Department One Civic Plaza NW 4th Floor Suite 4012, Albuquerque NM 87102. Copies of required certifications, registrations, and/or licenses, if not attached on-line, must be provided at the time of interview.

Managing Attorney-GEICO AlbuquerqueGEICO Staff Counsel is seeking a Managing Attorney with insurance defense and trial experi-ence to manage the Albuquerque, New Mexico office. The manager will be responsible for ad-ministration of the office including oversight of all day-to-day operations; evaluation and main-tenance of staffing needs; submission of budgets and business plan, projections and administration of salary plan, merit reviews and performance evaluations. The Managing Attorney will also be responsible for litigation oversight includ-ing new case evaluation and case assignments; internal quality audits; trial strategies; and final review of all cases assigned for trial. Proficiency in computer use is a must. Applicant must be a licensed New Mexico attorney. For position announcement and application instructions go to www.geico.jobs and hit the apply now button.

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poSitionS WantedAre You Looking for an Office Administrator?My past law office management experience places me in the position to be a confident manager of your law firm. I am familiar with the overall operations and details of how a law firm func-tions. I can report to the managing partner, management committee, or Chairman of the Board, and participate in management meetings. In addition to general responsibilities, I have been an Accounting Supervisor at a law firm and could use this experience to ensure sound financial planning and controls. Personnel administration, and systems and physical facilities are also part of my management experience. I would identify and plan for the changing needs of your organi-zation, share responsibility with the appropriate partners or owners for strategic planning, practice management and marketing, and contribute to cost-effective management throughout the organization. Call 505-660-9201 for a resume.

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march 28, 2012 • volume 51, no. 13 · 2. b. ar. b. ulletin - march 28, 2012 - volume 51, no. 13....

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