December 23, 2015 • Volume 54, No. 51 - NMBAR Home• Jan. 4, 2016, 5:30 p.m. First United...

Leaves ‘n Things, 48x36, by Sarah Hartshorne Matrix Fine Art

Inside This Issue

December 23, 2015 • Volume 54, No. 51

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

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

Second Judicial District Court Vacancy: New Application Period .........................................4

The Best of the Best: Leonard D. Sanchez Named 2015 Business Lawyer of the Year .............7

Women Lawyers and Their Families Help a Homeless Family Start a New Life, by Laura M. Castille and DeAnza Valencia Sapien ...................8

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

From the New Mexico Court of Appeals

2015-NMCA-090, No. 33,236: Lewis v. American General Media .................15

2015-NMCA-091, No. 32,564: State v. Fernandez .............................................20

2015-NMCA-092, No. 33,813: Armenta v. A.S. Horner, Inc............................22

2015-NMCA-093, Nos. 31,941/28,294: State of New Mexico ex rel. Children, Youth & Families Department v. Mercer-Smith .....27

2 Bar Bulletin - December 23, 2015 - Volume 54, No. 51

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Law Offices of

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Bar Bulletin - December 23, 2015 - Volume 54, No. 51 3

Notices .................................................................................................................................................................4Legal Education Calendar ..............................................................................................................................6The Best of the Best: Leonard D. Sanchez Named 2015 Business Lawyer of the Year ......................7Women Lawyers and Their Families Help a Homeless Family Start a New Life, by By Laura M. Castille and DeAnza Valencia Sapien ...........................................................................8Writs of Certiorari ..............................................................................................................................................9Court of Appeals Opinions List ...................................................................................................................11Clerk’s Certificates ...........................................................................................................................................12Recent Rule-Making Activity .......................................................................................................................14Opinions

From the New Mexico Court of Appeals2015-NMCA-090, No. 33,236: Lewis v. American General Media ..........................................15

2015-NMCA-091, No. 32,564: State v. Fernandez .......................................................................20

2015-NMCA-092, No. 33,813: Armenta v. A.S. Horner, Inc. ......................................................22

2015-NMCA-093, Nos. 31,941/28,294: State of New Mexico ex rel. Children, Youth & Families Department v. Mercer-Smith ...........................................................................................................................................27

Advertising ........................................................................................................................................................37

State Bar Workshops January

20 Family Law Clinic 10 a.m.–1 p.m., Second Judicial District Court, Albuquerque

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

MeetingsJanuary

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

5 Health Law Section BOD, 7 a.m, teleconference

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

6 Animal Law Section BOD, noon, State Bar Center

Table of Contents

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

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

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

©2015, State Bar of New Mexico. No part of this publica-tion may be reprinted or otherwise reproduced without the publisher’s written permission. The Bar Bulletin has the authority to edit letters and materials submitted for publication. Publishing and editorial decisions are based on the quality of writing, the timeliness of the article, and the potential interest to readers. Appearance of an article, editorial, feature, column, advertisement or photograph in the Bar Bulletin does not constitute an endorsement by the Bar Bulletin or the State Bar of New Mexico. The views expressed are those of the authors, who are solely responsible for the accuracy of their citations and quotations. State Bar members receive the Bar Bulletin as part of their annual dues. The Bar Bulletin is available at the subscription rate of $125 per year and is available online at www.nmbar.org.

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

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

December 23, 2015, Vol. 54, No. 51

Cover Artist: The focus of Sarah Hartshorne’s work has been on capturing the unique in the ordinary, the beauty in the mundane. Like the impressionists, she paints in oil from everyday life and the world around her, sharing what often goes unnoticed and exploring the play of light and shadow.




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NoticesProfessionalism TipCourt news

New Mexico Supreme CourtBoard of Legal SpecializationComments Solicited The following attorneys are applying for certification as a specialist in the areas of law identified. Application is made under the New Mexico Board of Legal 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 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.

Appellate Practice Law Edward Ricco

Employment and Labor Law Trent Howell

Federal Indian Law Paul Frye

Local County-Municipal Government Law Vanessa Chavez

Nann WinterNatural Resources Law

Ocean Munds-Dry

Second Judicial District CourtAnnouncement of Vacancy and New Application Period In response to Gov. Susana Martinez’ request for additional names to fill the vacancy on the Court which exists in Albuquerque, due to the appointment of the Hon. Judith Nakamura to the New Mexico Supreme Court, the dean of the UNM School of Law, designated by the New Mexico Constitution to chair the Second Judicial District Nominating Com-mittee, is soliciting additional applications for this position from lawyers who meet the statutory qualifications in Article VI, Section 14 of the New Mexico Constitu-tion. Applications and more information about the position can be found at www.lawschool.unm.edu/judsel/application.php. The deadline is 5 p.m., Jan. 7, 2016. Applications received by the initial Dec. 1 deadline remain viable and those in-dividuals need not reapply at this time. Applicants seeking information regarding election or retention if appointed should contact the Bureau of Elections in the office of the Secretary of State. The date

In all matters: “My Word is My Bond.”

and time of the reconvening of the Second Judicial Nominating Committee will be 9 a.m., Jan. 14, 2016, at the Bernalillo County Courthouse in Albuquerque. The Committee meeting will be open to the public, and with comments will have an opportunity to be heard.

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

Investiture of U.S. Magistrate Judge Laura Fashing Hon. Laura Fashing will be sworn in as U.S. Magistrate Judge for the U.S. District Court for the District of New Mexico, at 4 p.m., Jan. 15, 2016, in the Rio Grande Courtroom, third floor, of the Pete V. Domenici U.S. Courthouse, 333 Lomas Boulevard NW, Albuquerque. A recep-tion hosted by the Federal Bench and Bar of the United States District Court for the District of New Mexico, will follow from 6 to 8:30 p.m., at the Albuquerque Country Club, 601 Laguna Boulevard S.W. All members of the bench and bar are invited to attend; however, reservations are requested. R.S.V.P. to 505-348-2001 or [email protected].

state Bar newsAttorney Support Groups• Jan. 4, 2016, 5:30 p.m. First United Methodist Church, 4th

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

• Jan. 11, 2016,, 5:30 p.m. UNM School of Law, 1117 Stanford NE,

Albuquerque, King Room in the Law Library (the group meets on the second Monday of the month). To increase access, teleconference participation is now available. Dial 1-866-640-4044 and enter code 7976003#.

• Feb. 15, 7:30 a.m. First United Methodist Church, 4th

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

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

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

2016 Licensing NotificationDue by Dec. 31 2016 State Bar licensing fees and certi-fications are due Dec. 31, 2015, and must be completed by Feb. 1, 2016, to avoid non-compliance and related late fees. Complete annual licensing requirements at www.nmbar.org. Payment by credit and debit card are available (will incur a service charge). For more information, call 505-797-6083 or email [email protected]. For help logging in or other website troubleshooting, call 505-797-6086 or email [email protected]. Those who have already completed their licensing requirements should disregard this notice.

Board of Bar CommissionersElection Results The 2015 election of commissioners for the Board of Bar Commissioners in the First Bar Commissioner District (Bernalillo County) was held Nov. 30. The results are as follows: Joshua A. Al-lison, Hon. Kevin L. Fitzwater (ret.), Clara Moran and Benjamin I. Sherman. No nomination petitions were received for the vacancy in the Third Bar Commissioner District (Los Alamos, Rio Arriba, Sandoval and Santa Fe counties).The Board will appoint a member from that district. The

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

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

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

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






Second District (Cibola, McKinley, San Juan and Valencia counties) and Fifth Dis-trict (Curry, DeBaca, Quay and Roosevelt counties) were uncontested and Joseph F. Sawyer and Wesley O. Pool are elected by acclamation to those districts, respectively.

Committee on Women and the Legal ProfessionLocation Needed to Store Professional Clothing Closet Since 2010, the Committee has spon-sored a Professional Clothing Closet which makes gently used professional attire available to members of the State Bar, law students, paralegals and clients. Due to an office move, the closet will need a new home in 2016. For more in-formation or to volunteer space, contact Co-chair DeAnza Valencia Sapien at [email protected].

Solo and Small Firm SectionLunch Meeting and Presentation Valerie Plame, respected former intel-ligence agent, has recently returned from assignment in Jordan and will speak on the international refugee situation, ISIS, Edward Snowden and other national security issues and more when she presen ts at the Solo and Small Firm Section luncheon at noon, Jan. 19, at the State Bar Center. The luncheon is free and open to all members of the bench and bar. Lunch is provided to those who R.S.V.P. to Evann Kleinschmidt at [email protected] Section has scheduled exciting and current speakers through April 2016:• Feb. 16, 2016: Randi McGinn• March 15, 2016: Legislative session review with State Sen. Mike Sanchez• April 19, 2016: “The Emerging Future of Legal Relationships with Cuba” with David Serna and Leon Encinias

unMLaw LibraryHours Through Jan. 10, 2016Building & Circulation Monday–Thursday 8 a.m.–8 p.m. Friday 8 a.m.–6 p.m. Saturday 10 a.m.–6 p.m. Sunday Noon–6 p.m.Reference Monday–Friday 9 a.m.–6 p.m. Saturday–Sunday ClosedClosures Dec. 23–Jan. 3, 2016

New Mexico Lawyers and Judges

Assistance Program

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

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

Judges888-502-1289

www.nmbar.org > for Members > Lawyers/Judges Asswistance

Innocence and Justice ProjectDonations Requested Contributions to the New Mexico Innocence and Justice Project are tax de-ductible and count toward the financial contribution aspect of the pro bono rules governing the State Bar. The Innocence and Justice Project at UNM School of Law is a resource for persons convicted in state courts who have a meritorious claim of factual innocence. For more information, visit http://lawschool.unm.edu/ijp/. Rule 24-108 NMRA of the Rules Governing the State Bar require at least 50 hours pro bono legal services each year or for members to make a financial contribution to organizations that pro-vide legal services to persons of limited means in New Mexico of $500/year, or some combination thereof, and to so certify annually when renewing State Bar membership. Money contributed to IJP qualifies for credit toward the pro bono goal under this rule. Visit http://lawschool.unm.edu/alumni/common/docs/giving-form-2014-15.pdf to down-load the gift form. Make checks payable to UNM Foundation, memo line “Bar-bara Bergman Fund – for IJP only.” UNM School of Law–Office of Advancement, 1117 Stanford, N.E. MSC11-6070, 1 University of New Mexico, Albuquerque, NM 87131-0001.

other BarsAmerican Bar AssociationSeeking Writers for Litigation News The American Bar Association Sec-tion of Litigation’s national news maga-zine, Litigation News, seeks writers interested in joining the editorial board as contributing editors. Contributing editors write four articles per year and attend two ABA conferences (at least partial reimbursement available). Litigation News is published quarterly in print and adds stories at least weekly to its online version. Its print circulation exceeds 50,000. Those interested should send a résumé and writing sample to [email protected] by Jan. 22, 2016. Litigation News will notify those applicants selected to participate in the annual write-on competition by Feb. 5, 2016.

Members, their employees, and immediate family members

can enjoy a discounted rate of approximately $42/month (plus tax) with access to all five club locations, group fitness

classes and free supervised child care. Bring proof of SBNM membership.

Contact Shawn Gale, [email protected] or 505-814-2355.

Visit www.defined.com.

Member BenefitF e a t u r e d

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

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

Santa Fe, NM 87504-0848

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

address Changes

continued on page 7



http://lawschool.unm

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

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



http://www.defined.com

mailto:@nmcourts.gov




Legal Education

December

23 The Cybersleuth’s Guide to the Internet

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

28 Ethicspalooza Redux—Winter 2015 Edition

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

29 Federal Practice Tips and Advice from U.S. Magistrate Judges

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

29 2016 Legislative Preview 2.0 G Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

29 2015 Mock Meeting of the Ethics Advisory Committee

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

30 Professional Liability Insurance: What You Need to Know

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

January 2016

5 What Busienss Law Practitioners Need to Know About ACA

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

12 Structuring and Equity Investments in Real Estate


13 Employees v. Independent Contractors: Employment & Tax Law Issues


12 What’s in a Trademarked Name: Pro Football Inc. v. Blackhorse

1.0 G Live Seminar H. Vearle Payne Inn of Court 505-321-1461

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

22 Lawyer Ethics: When a Client Won’t Pay YOur Fees


29 Professionalism for the Ethical Lawyer















First Judicial District Bar AssociationJanuary Luncheon with Justice Charles W. Daniels Justice Charles Daniels of the New Mexico Supreme Court will speak at the First Judicial District Bar Association’s January luncheon about the proposed constitutional amendment to permit denial of pretrial release based on dan-gerousness rather than lack of money and other bail reforms. The luncheon will be

noon to 1 p.m., Jan. 11, 2016, at the Santa Fe Hilton. Attendance is $15 and includes a buffet lunch. For more information or to R.S.V.P. contact Lucas Conley at [email protected] or 505-986-2657.

New Mexico Women’s Bar Association2016 Officers and Board The 2016 election for the New Mexico Women’s Bar Association recently ended. Serving as officers for 2016 are President Barbara Koenig, Vice-President Yasmin Dennig, Secretary Kate Southard, Trea-

surer Amie Nelson, Compliance Officer Lindsay Griffel and directors at large DeAnza V. Sapien and Sharon Shaheen. New board members Amy Glasser, Amy Sirignano, Andrea Harris, Christina Adams and Michelle Huff join existing board members Deborah Seligman, Han-nah Best, Lori Martinez, Margaret Branch, Peggy Graham, Traci Olivas, Christina West, and Past President Louren Oliveros. Annual membership dues may be paid with the annual State Bar licensing renewal or at www.nmbar.org > for Members > Other Bars.

The Best of the BestLeonard D. Sanchez Named 2015 Business Lawyer of the YearThe Business Law Section selected long-time Board member and PNM Re-sources associate general counsel Leonard D. Sanchez as the 2015 Business Lawyer of the Year. Section Chair Rosalyn D. Nguyen noted that Sanchez re-ceived more support than any other candidate in the award’s history and called

him a “gem of the business community.” The award recognizes an attorney who has made significant contributions to the practice of business law in New Mexico. Sanchez thanked his family and colleagues for the honor and continued support. Sanchez is an Albuquerque native and attended the University of New Mexico and Stanford Law School. He and his wife, Jennifer (pictured above), have four children. For more photos and information, visit www.nmbar.org > About Us > Sections > Business Law. ■

Business Law Section board member Brian J. Haverly, award recipient Leonard D. Sanchez, board member Charles A. Seibert III and Section Chair Rosalyn D. Nguyen.

continued from page 5




The State Bar of New Mexico’s Committee on Women and the

Legal Profession recently undertook a new project and decorated a complete apartment home for a homeless mother and her four young children through Albuquerque’s homeless non-profit organization Saranam. Saranam is a two-year old housing and education program for homeless families in Albuquerque.

In January, the Committee presented its Justice Pamela B. Minzner Outstanding Advocacy for Women Award to the Saranam Board of Directors Chair Jane “Janie” Rowe. After learning more about the work of Saranam, the Committee voted to take on the daunting task of decorating a full apartment for a new family. Saranam places families into an apartment home for two years and then assists them in the transition to permanent housing. Their goal is to provide stability for the family, while they receive employment assistance, case management, education and therapeutic support when needed. “Saranam” means “refuge,” and that is precisely what these homes become to the families who are selected to live in them.

Members of the Committee generously offered to donate items from their homes and purchase new items as needed to decorate an entire apartment home. Committee members worked over a month of weekends and countless hours on

this special project. Many members brought their spouses and children along to help with the work. It was a special experience for many of the children who helped to understand that they were helping a family that had absolutely nothing to get on their feet.

The attorneys purchased and donated all of the household items. It was truly a team effort. Members even donated additional funding to purchase a nicer couch for the family to make the apartment even more special.

Committee members took pride in preparing a fantastic home for the homeless family by lending their talented home decorating skills and tenacity to the effort.

Ultimately, a single mother and her four children–all under the age of six years old–were selected to live in the apartment home. When the young mom entered her new home she wept and told the Saranam staff that she, “…would work hard as a means to show her appreciation” for all that Saranam and the Committee on Women and the Legal Profession had done for her and her family.

The Committee is thrilled that we could create such a wonderful home for this young family to live while they take steps toward a better life and permanent home. Although Committee members donated time and belongings to help this family, they said they received so much more in return.

Committee members, from left, Laura Castille, Jeanne Hamrick, DeAnza Sapien,

Liz Garcia and Patty Galindo and their children pose in the newly decorated

Saranam adopted apartment.

Women Lawyers and Their Families Help a Homeless Family Start a New Life

By Laura M. Castille and DeAnza Valencia Sapien

1. Jeanne Hamrick and Patty Galindo2. Laura Castille3. Ginny Castille4. Laura, Ginny and Jacky Castille

2

4

3

A Rewarding Experience: Many Committee members brought their children and other family members along to decorate the apartment. Though discussing topics like homelessness can be difficult, Committee members noticed that the experience helped to start honest and educational conversations in their homes. To view more photos, visit www.nmbar.org > About Us > Committees > Committee on Women and the Legal Profession.

1

To learn more about how you can help support Saranam, call 505-299-6154 or visit www.saranamabq.org.


http://www.saranamabq.org


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

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

Petitions for Writ of Certiorari Filed and Pending:

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

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

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

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

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

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

N.M. Corrections Dept. 12-501 10/20/14No. 34,932 Gonzales v. Sanchez 12-501 10/16/14No. 34,907 Cantone v. Franco 12-501 09/11/14No. 34,680 Wing v. Janecka 12-501 07/14/14No. 34,777 State v. Dorais COA 32,235 07/02/14No. 34,790 Venie v. Velasquz COA 33,427 06/27/14No. 34,775 State v. Merhege COA 32,461 06/19/14No. 34,706 Camacho v. Sanchez 12-501 05/13/14No. 34,563 Benavidez v. State 12-501 02/25/14No. 34,303 Gutierrez v. State 12-501 07/30/13No. 34,067 Gutierrez v. Williams 12-501 03/14/13No. 33,868 Burdex v. Bravo 12-501 11/28/12No. 33,819 Chavez v. State 12-501 10/29/12No. 33,867 Roche v. Janecka 12-501 09/28/12No. 33,539 Contreras v. State 12-501 07/12/12No. 33,630 Utley v. State 12-501 06/07/12

Certiorari Granted but Not Yet Submitted to the Court:

(Parties preparing briefs) Date Writ IssuedNo. 33,725 State v. Pasillas COA 31,513 09/14/12No. 33,877 State v. Alvarez COA 31,987 12/06/12No. 33,930 State v. Rodriguez COA 30,938 01/18/13No. 34,363 Pielhau v. State Farm COA 31,899 11/15/13No. 34,274 State v. Nolen 12-501 11/20/13No. 34,443 Aragon v. State 12-501 02/14/14No. 34,522 Hobson v. Hatch 12-501 03/28/14No. 34,582 State v. Sanchez COA 32,862 04/11/14No. 34,694 State v. Salazar COA 33,232 06/06/14No. 34,669 Hart v. Otero County Prison 12-501 06/06/14No. 34,650 Scott v. Morales COA 32,475 06/06/14No. 34,784 Silva v. Lovelace Health

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

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

Effective November 20, 2015


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

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

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

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

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

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

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

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

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

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

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

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

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

Certiorari Granted and Submitted to the Court:

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

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

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

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

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

Benson COA 32,666 08/24/15

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

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

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

Opinion on Writ of Certiorari:

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

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

Petition for Writ of Certiorari Denied:

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

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

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


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

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

Effective December 11, 2015Published Opinions

No. 34006 2nd Jud Dist Bernalillo CV-13-2403, NATIONAL ROOFING v ALSTATE STEEL, INC. (affirm) 12/07/2015No. 33849 AD AD AD-14-19, HI COUNTRY v TAX & REV (affirm in part, reverse in part) 12/08/2015No. 32661 13th Jud Dist Sandoval CV-09-2519, SPOVERLOOK v SONIDA (reverse and remand) 12/08/2015No. 33704 1st Jud Dist Santa Fe CV-10-697, SF WATER v J D’ANTONIO (affirm) 12/09/2015

Unublished Opinions

No. 33426 5th Jud Dist Eddy CR-09-334, STATE v R REED (reverse and remand) 12/07/2015No. 34706 2nd Jud Dist Bernalillo LR-13-111, STATE v E HAYDEN (affirm) 12/07/2015No. 32165 11th Jud Dist San Juan CV-10-1078, TPC v P HEGARTY (reverse and remand) 12/07/2015No. 34292 11th Jud Dist San Juan CV-10-1078, TPC v P HEGARTY (reverse and remand) 12/07/2015No. 34658 12th Jud Dist Otero CR-13-491, STATE v T COMMERS (affirm) 12/08/2015 No. 32852 5th Jud Dist Chaves CV-12-246, G BELL v K BELL (affirm) 12/08/2015No. 33785 2nd Jud Dist Bernalillo CV-10-7467, CV-11-2196, S CHAVEZ v BOARD OF REGENTS (affirm) 12/08/2015No. 34809 2nd Jud Dist Bernalillo CV-14-1963, R FALKNER v ALB POLICE DEPT (affirm) 12/08/2015No. 33527 3rd Jud Dist Dona Ana CR-12-753, STATE v M MARQUEZ (affirm) 12/09/2015No. 34652 3rd Jud Dist Dona Ana Cr-13-7096, STATE v F OSOLLO (reverse) 12/10/2015

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

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

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

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


Clerk’s Certificate of Withdrawal

Effective November 20, 2015:William Flad Aldridge10912 Academy Ridge Road, NEAlbuquerque, NM 87111

In Memoriam

As of November 4, 2015:Craig S. Barnes96 Arroyo Hondo RoadSanta Fe, NM 87505

Clerk’s Certificate of Change to Inactive

Status

Effective December 1, 2015:Robert W. CaseyRobert W. Casey, PC4812 Brookwood Street, NEAlbuquerque, NM 87109505-884-7844505-883-3239 (fax)[email protected]

Effective November 25, 2015:Adair Kathleen FincherLegal Aid Services of Oklahoma, Inc,3851 East Tuxedo, Suite EBartlesville, OK [email protected]

Effective November 22, 2015:Kerry LohmeierUniversity of Utah - S.J. Quinney College of Law383 S. University StreetSalt Lake City, UT [email protected]

Clerk’s Certificate of Admission

On December 1, 2015:Fatima Hassan-SalamSalam & Associates, PC7616 LBJ Freeway, Suite 722Dallas, TX 75251972-437-1900972-437-2027 (fax)[email protected]

On December 1, 2015:Kristina N. HolmstromLewis Roca Rothgerber LLP201 E. Washington Street, Suite 1200Phoenix, AZ [email protected]


Effective November 30, 2015:F. Barry McCabeMajestic Realty3490 Piedmont Road, NE, Suite 210Atlanta, GA 30305404-467-5245404-467-5256 (fax)[email protected]

Effective December 1, 2015:Charles J. Noya3500 Sequoia Court, NWAlbuquerque, NM [email protected]

On December 1, 2015:Eric RobertsonAusley, Algert, Robertson & Flores, LLP3307 Northland Drive, Suite 420Austin, TX 78731512-454-8791512-454-9091 (fax)[email protected]

On December 1, 2015:Thomas Wood301 Central Avenue, NE, Apt. 311Albuquerque, NM [email protected]

On December 1, 2015:Dan G. YoungJenkins, Wagnon & Young, PC1623 Tenth StreetLubbock, TX 79401806-796-7322806-771-8755 (fax)[email protected]

Clerk’s Certificate of Reinstatement to

Active Status

Effective December 2, 2015:David ProperProper Law Firm, LLC345 N. Water StreetLas Cruces, NM [email protected]

Clerk’s Certificate of Name and Address

Change

As of December 1, 2015Jade D. Rotonda f/k/a Jade Plagata Delfin RotondaMcCarthy & Holthus, LLP6501 Eagle Rock Avenue, NE, Suite A-3Albuquerque, NM [email protected]

Clerk’s Certificate of Admission

On December 8, 2015:Matthew BarceleauOffice of the Second Judicial District Attorney520 Lomas Blvd. NWAlbuquerque, NM 87102505-222-1267505-241-1267 (fax)[email protected]

On December 8, 2015:H. C. ChangMcGehee, Chang, Barnes, Landgraf10370 Richmond Avenue, Suite 1300Houston, TX 77042713-864-4000713-868-9393 (fax)[email protected]

On December 8, 2015:Benjamin T. LandgrafMcGehee, Chang, Barnes, Landgraf10370 Richmond Avenue, Suite 1300Houston, TX 77042713-864-4000713-868-9393 (fax)[email protected]

On December 8, 2015:Jack E. McGeheeMcGehee, Chang, Barnes, Landgraf10370 Richmond Avenue, Suite 1300Houston, TX 77042713-864-4000713-868-9393 (fax)[email protected]

















Clerk’s Certificates

On December 8, 2015:Jonathan L. ShoenerFaber and Brand, LLCPO Box 101106750 S. New Town Avenue (65203)Columbia, MO 65205573-449-3141573-442-1072 (fax)[email protected]

December 8, 2015:Robert E. WalshChris Pettit & Associates, PC11902 Rustic LaneSan Antonio, TX 78230210-732-8300210-694-2322 ([email protected]

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

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

Effective December 2, 2015

Pending Proposed Rule Changes Open for Comment:

Comment Deadline

None to report at this time.

Recently Approved Rule Changes Since Release of 2015 NMRA:

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

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

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

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http://www.nmcompcomm.us


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


Opinion Number: 2015-NMCA-090

SANDRA LEWIS,Worker-Appellee,

v.AMERICAN GENERAL MEDIA and GALLAGHER BASSETT,

Employer/Insurer-AppellantDocket No. 33,236 (filed June 26, 2015)

APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATIONTERRY S. KRAMER, Workers’ Compensation Judge

PETER D. WHITESanta Fe, New Mexico

for Appellee

PAUL L. CIVEROLOPAUL L. CIVEROLO, L.L.C.

Albuquerque, New Mexicofor Appellant

Opinion

James J. Wechsler, Judge{1} We are again called upon to address the application of the Workers’ Compen-sation Act, NMSA 1978, §§ 52-1-1 to -70 (1929, as amended through 2013), to a worker certified to receive treatment with medical marijuana under the Lynn and Erin Compassionate Use Act (Compas-sionate Use Act), NMSA 1978, §§ 26-2B-1 to -7 (2007). In Vialpando v. Ben’s Automo-tive Services, we held that the Workers’ Compensation Act authorizes reimburse-ment for medical marijuana and declined to hold that federal law required a different result. 2014-NMCA-084, ¶¶ 1, 16, 331 P.3d 975, cert. denied, 331 P.3d 924 (2014). In Maez v. Riley Industrial, we considered the sufficiency of the evidence that supported reimbursement for medical marijuana for the worker in that case. 2015-NMCA-049, 347 P.3d 732.{2} In this case, Gallagher Bassett and its insurer American General Media (collectively, Employer) challenge the sufficiency of the evidence supporting the conclusions of the Workers’ Compensa-tion Judge (WCJ) that the use of medical marijuana by Worker Sandra Lewis con-stituted reasonable and necessary medi-cal care that required reimbursement. Specifically, Employer argues that the evidence offered by Worker’s authorized health care provider was insufficient and that the WCJ erred by relying on testi-mony from an unauthorized health care provider who had provided a certification for Worker’s use of medical marijuana un-

der the Compassionate Use Act. Employer further argues that the conflict between New Mexico and federal law concerning the use of medical marijuana precludes the validity of the amended compensa-tion order in this case. We hold that the medical certification forms and notes of Worker’s authorized health care provider were substantial evidence to support the WCJ’s conclusion that Worker’s use of medical marijuana constitutes reasonable and necessary medical care and that, as discussed in Vialpando, the conflict be-tween New Mexico and federal law does not support failing to give recognition to the amended compensation order. We therefore affirm.BACKGROUND{3} Worker suffered a compensable, work-related injury to her lower back in December 1998. She underwent several surgical procedures and currently suffers from post-laminectomy syndrome in the lumbar region. She suffers chronic pain. Since her injury, Worker has taken numer-ous drugs as part of her pain management, including Oxycontin, oxycodone, Soma, Norflex, gabapentin, Lyrica, Percocet, fentanyl, and Zantac.{4} The issues concerning Worker’s treat-ment began on April 16, 2012, when Em-ployer filed an application requesting an independent medical examination (IME) in order to determine the scope of reason-able and necessary treatment for Worker’s condition. In its application, Employer stated that Worker had been using medi-cal marijuana and taking prescribed pain medication, which was inconsistent with

Worker’s belief that medical marijuana “is now the most effective medication from all of her different treatment and she is concerned by potential side effects.” The WCJ appointed Dr. Carl Adams, a psy-chologist, “to address Worker’s ongoing pain management and use of pain medi-cations.” Dr. Adams’ recommendations, issued September 17, 2012, supported Worker’s request to use medical marijuana to control her pain as reasonable and ap-propriate.{5} Worker was originally certified to participate in the New Mexico Department of Health Medical Cannabis Program (the program) on March 22, 2010. On July 31, 2012, Dr. Carlos Esparza, Worker’s autho-rized health care provider, provided the written certification under the Compas-sionate Use Act for Worker to re-enroll in the program. As required by the Com-passionate Use Act, Dr. Esparza certified that Worker had “debilitating” medical conditions (painful peripheral neuropathy and severe chronic pain) and that Worker had “current unrelieved symptoms that have failed other medical therapies.” Dr. Esparza stated that the “benefits of medical marijuana outweigh the risk of hyper doses of narcotic medications.”{6} On May 30, 2013, Dr. Stephen I. Rosenberg, after a medical consultation as a second doctor required for certifi-cation of Worker’s re-enrollment, also signed a certification form for Worker’s re-enrollment in the program, listing Worker’s condition as severe chronic pain and making essentially the same certifica-tions as Dr. Esparza. On July 31, 2013, Joel Gelinas, a physician’s assistant in Dr. Esparza’s office, also signed a certification form for Worker’s re-enrollment in the program. He listed Worker’s condition as severe chronic pain and certified that Worker’s condition was debilitating and that “standard treatments have failed to bring adequate relief.”{7} After trial, conducted on August 8, 2013, the WCJ found that Worker’s authorized health care provider was Dr. Esparza and physician’s assistant Joel Ge-linas and that “the office of Dr. Esparza” had recommended Worker “as a candidate for medical marijuana under the Compas-sionate Use Act.” The WCJ concluded that Worker’s use of medical marijuana under the program constituted reasonable and necessary medical care and required Em-ployer to reimburse Worker for the receipts she submitted for her certified purchases. Employer filed this appeal.

http://www.nmcompcomm.us/


http://www.nmcompcomm.us/Advance OpinionsREASONABLE AND NECESSARY MEDICAL CARE{8} As its first main argument, Employer challenges the sufficiency of the evidence supporting the WCJ’s conclusion that Worker’s use of medical marijuana con-stituted reasonable and necessary medical care. Employer asserts this challenge in two ways, arguing that (1) “[t]he record does not support [the WCJ’s] finding that [W]orker was recommended as a candidate for medical marijuana under the [C]ompassionate [U]se [A]ct through the office of Dr. Esparza” and (2) the WCJ “went outside” the Workers’ Compensa-tion Act and interpreting case law “to rely on testimony by an unauthorized provider” to make its finding of reason-able and necessary care.Testimony of an Unauthorized Provider{9} We first address Employer’s argument that the WCJ improperly relied on the testimony of an unauthorized health care provider in determining that Worker’s use of medical marijuana constituted reason-able and necessary medical care. In this regard, Employer contends that because Worker needed the certification of two health care professionals to be able to use medical marijuana under the Compas-sionate Use Act, the WCJ necessarily relied on the certification of Dr. Rosenberg in the WCJ’s determination of the necessity of medical marijuana care. Thus, according to Employer, the WCJ improperly considered the certification of Dr. Rosenberg who was not qualified to present testimony under the Workers’ Compensation Act because he was neither Worker’s authorized health care provider nor a health care provider authorized to perform an IME. See § 52-1-51(C) (“Only a health care provider who has treated the worker . . . or the health care provider providing the independent medi-cal examination . . . may offer testimony at any workers’ compensation hearing concerning the particular injury in ques-tion.”).{10} Employer’s argument requires us to interpret the Workers’ Compensation Act in connection with the Compassionate Use Act based on the facts of this case. We thus afford it de novo review. Vialpando, 2014-NMCA-084, ¶ 5.{11} Employer’s argument fatally inter-connects the Workers’ Compensation Act and the Compassionate Use Act. In order for a worker to qualify for medical

care after a compensable injury under the Workers’ Compensation Act, the care must be “reasonable and necessary” care from a health care provider. Section 52-1-49(A). Typically, in the event of a dispute between a worker and an employer per-taining to the reasonableness or necessity of medical care, a worker will establish that care was reasonable and necessary through evidence provided by a health care provider. See DiMatteo v. Doña Ana Cnty., 1985-NMCA-099, ¶ 26, 104 N.M. 599, 725 P.2d 575 (stating under previous version of Workers’ Compensation Act that the worker had the burden of proving that his medical expenses were reasonably necessary). The Workers’ Compensation Act restricts testimony in this regard to either a treating health care provider or an independent medical examiner. Section 52-1-51(C).{12} In order to qualify for medical marijuana under the Compassionate Use Act, “a person licensed in New Mexico to prescribe and administer” controlled substances must certify to the opinion that “the patient has a debilitating medical con-dition” as defined in the Compassionate Use Act and “the potential health benefits of the medical use of cannabis would likely outweigh the health risks for the patient.” Section 26-2B-3(E), (H). Regulations pro-mulgated by the New Mexico Department of Health require two written certifications when the debilitating medical condition is, as for Worker, severe chronic pain: one from a primary health care provider and one from a “specialist with expertise in pain management or . . . expertise in the disease process that is causing the pain”). 7.34.3.8(B)(1)(b) NMAC (12/30/2010)1.{13} However, no statutory or regulatory provision connects these requirements under the two separate statutory schemes. Practically, a worker first must be enrolled in the medical marijuana program un-der the Compassionate Use Act before any issue can arise under the Workers’ Compensation Act as to whether medical marijuana use is reasonable and necessary care. But, otherwise, the two determina-tions are not dependent on each other; they are made separately, at different times, and by different administrative authori-ties. No express provision of the Workers’ Compensation Act grants a WCJ the au-thority to review a Department of Health enrollment determination. See Jones v.

Holiday Inn Express, 2014-NMCA-082, ¶ 19, 331 P.3d 992 (“Since the [Workers’ Compensation Administration] is a crea-ture of the Legislature, [the Court] can-not expand the [Workers’ Compensation Administration’s] jurisdiction over matters unless the Legislature expressly granted the [Workers’ Compensation Administration] jurisdiction or jurisdiction can be found by necessary implication.”).{14} Thus, although the Department of Health requires that a person obtain two written certifications in order to be enrolled in the program and receive medi-cal marijuana for severe chronic pain, the Workers’ Compensation Act has no such quantitative requirements for a WCJ to determine that medical care is reason-able and necessary. Indeed, the Workers’ Compensation Act contemplates that fewer, rather than more, professionals will provide input by restricting testimony to treating providers and independent medi-cal examiners. Section 52-1-51(C). Nor does the Workers’ Compensation Act re-quire, as Employer urges, that a WCJ make a determination that a worker enrolled in the Medical Cannabis Program was properly eligible for medical marijuana use. The Compassionate Use Act and its associated regulations control the man-ner in which that determination is made, and the Department of Health bears the responsibility of approving applications for enrollment in the Medical Cannabis Program. See § 26-2B-7(G) (providing that the Department of Health shall is-sue registry identification cards for the Medical Cannabis Program to patients who submit applications in accordance with the Department’s rules); see also 7.34.3.7(JJ) (12/30/2010) (defining “reg-istry identification card” as “a document issued by the department which identifies a qualified patient authorized to engage in the use of cannabis for a debilitating medical condition” (internal quotation marks omitted)). All that is required by the Workers Compensation Act is that the WCJ determine, based on evidence from one or more authorized health care providers, whether a worker’s medical treatment for a work injury is reasonable and necessary. Section 52-1-51.{15} The facts of this case are illustra-tive. Dr. Esparza and Joel Gelinas were Worker’s authorized health care provider. The evidence included their certifications

1Section 7.34.3 NMAC was amended in 2015. The previous version (12/30/2010) is cited in this Opinion because it is applicable to the pending case.



http://www.nmcompcomm.us/Advance Opinionsfor Worker’s participation in the Medical Cannabis Program and use of medical marijuana as well as their related medi-cal notes. Dr. Rosenberg, who was not an authorized health care provider under the Workers’ Compensation Act, also submit-ted a written certification in support of Worker’s enrollment in the program. See § 52-1-49 (stating the manner for selection of an authorized health care provider).{16} Although Dr. Rosenberg’s certifica-tion may have been necessary for Worker’s enrollment in the program, it was unneces-sary evidence to establish the reasonable-ness and necessity of Worker’s medical care because Dr. Rosenberg was not an autho-rized health care provider. Thus, Employer argues that Worker’s medical marijuana treatment could not be considered medi-cally necessary because the WCJ could not consider the certification of Dr. Rosenberg as an unauthorized health care provider in meeting the eligibility requirements of the Compassionate Use Act.2 However, even though the administrative regulations promulgated by the Department of Health pursuant to the Compassionate Use Act may require more than one certification for the condition of severe chronic pain, nothing in the Workers’ Compensation Act requires evidence from more than one health care provider in order to es-tablish the reasonableness and necessity of medical care. Worker was enrolled in the Medical Cannabis Program; it was not the role of the WCJ to second-guess that determination, and the issue is not before us. In this regard, the only pertinent issue in this appeal is whether Worker presented substantial evidence to the WCJ for the WCJ to determine that medical marijuana use was reasonable and necessary medical care.Sufficiency of the Evidence{17} We thus turn to whether substantial evidence supported the WCJ’s conclusion, taking into account Employer’s arguments concerning the receipt in evidence of Dr. Rosenberg’s certification.3 We review for substantive evidence under a whole record standard of review. Dewitt v. Rent-A-Cen-ter, Inc., 2009-NMSC-032, ¶ 12, 146 N.M. 453, 212 P.3d 341. “Whole record review contemplates a canvass by the reviewing court of all the evidence bearing on a find-

ing or decision, favorable and unfavorable, in order to determine if there is substantial evidence to support the result.” Leonard v. Payday Prof ’l, 2007-NMCA-128, ¶ 10, 142 N.M. 605, 168 P.3d 177 (alteration, internal quotation marks, and citation omitted). Substantial evidence is evidence that demonstrates “the reasonableness of an agency’s decision, and we neither reweigh the evidence nor replace the fact finder’s conclusions with our own.” Dewitt, 2009-NMSC-032, ¶ 12 (citation omitted). We give deference to the factfinder and will not disturb the WCJ’s findings on appeal if they are supported by substantial evidence on the record as a whole. Herman v. Miners’ Hosp., 1991-NMSC-021, ¶ 6, 111 N.M. 550, 807 P.2d 734.{18} The certification forms from both Dr. Esparza and Joel Gelinas stated that Worker suffered from severe chronic pain and that other treatment had not worked. Specifically, Dr. Esparza stated that the benefits of medical marijuana would “out-weigh the risk of hyper doses of narcotic medications.”{19} Employer points to the medical notes of Dr. Esparza and Joel Gelinas and contends that they are equivocal state-ments and that the opinions expressed are not “of medical reasonableness and necessity.” Dr. Esparza’s July 17, 2012 medi-cal notes state that Worker informed him that she had reduced her use of prescribed medications because she had been using medical marijuana. Dr. Esparza stated that “it would be reasonable for us to drop some of these narcotic medications in place of the medical marijuana if that is helping her. I would be happy to fill out her form for this.” In Joel Gelinas’ July 31, 2012 medical note, he observes that Worker stated that she needed a referral to her primary care doctor “so that [her use of medical marijuana] could be as-sociated with her work injury.” Worker was concerned that she was “using the marijuana to medically control her pain, which is related to her workers’ compensa-tion injury.” Joel Gelinas noted that he told Worker that he would discuss the request with Dr. Esparza but that “[w]e generally do not refer patients to their primary care doctor for evaluation for a workers’ com-pensation injury.”

{20} When considered as a whole, the medical certification forms and notes of Dr. Esparza and Joel Gelinas are sub-stantial evidence supporting the WCJ’s determination. The medical certification forms certify Worker for enrollment in the program and clearly state that other treatments, that included narcotic medica-tions, have failed. The medical certification forms are the functional equivalents of prescriptions. Vialpando, 2014-NMCA-084, ¶ 12. Further, Dr. Esparza expressly states in his note that “it would be reason-able” to replace some of Worker’s narcotic medications if the medical marijuana was helping her and that he would be happy to complete her certification. We do not consider this language to be equivocal in view of Dr. Esparza’s issuing the certifica-tion.{21} Joel Gelinas’ medical note does not detract from his certification. The prac-tice of Dr. Esparza’s office, by which Dr. Esparza and Joel Gelinas would not refer Worker to her primary physician in order to link Worker’s use of medical marijuana to her work injury, does not impact the determination of whether Worker’s use of medical marijuana is reasonable and necessary medical care. Dr. Esparza and Joel Gelinas were Worker’s authorized health care provider who medically treated Worker; they were under no obligation to assist Worker with her legal claim. We as-sume that they issued their certifications in the good faith medical belief that Worker’s use of medical marijuana would benefit her medical treatment. Cf. Maez, 2015-NMCA-049, ¶ 29 (holding that medical care was reasonable and necessary where the evidence did not support the infer-ence that a health care provider failed to exercise medical judgment in certifying a worker for the Compassionate Use Act program). The fact that they did not refer Worker to her primary physician does not indicate that they did not have such a belief.{22} Employer also argues that Dr. Esparza “would not have prescribed a controlled substance to [W]orker because it defies logic that a doctor holding a valid license would jeopardize himself or his patient by recommending illegal use of a controlled substance.” According to

2Employer also intimates on appeal that Dr. Rosenberg’s certification could not support Worker’s enrollment in the program be-cause he was not Worker’s primary physician. Employer, however, does not indicate the manner in which such an issue was preserved before the WCJ. “To preserve a question for review it must appear that a ruling or decision” below was fairly invoked. Rule 12-216(A) NMRA. 3The certification forms of Dr. Esparza, Dr. Rosenberg, and Joel Gelinas were all received in evidence over Employer’s objection.



http://www.nmcompcomm.us/Advance OpinionsEmployer, Dr. Esparza’s “discomfort with recommending or prescribing medical marijuana is underscored by his refusal to provide [W]orker with a referral to an-other doctor, even though she requested this referral.” We are unpersuaded by this speculation. First, and significantly, Employer makes no reference to the re-cord in support of his attributions to Dr. Esparza. See Rule 12-213(A)(4) NMRA (requiring an appellant to provide cita-tions to the record proper in support of each argument); see also Fenner v. Fenner, 1987-NMCA-066, ¶ 28, 106 N.M. 36, 738 P.2d 908 (holding that the Court need not consider arguments raised on appeal that are unsupported by record citations). Second, although federal law prohibits prescribing marijuana for medical use, the Compassionate Use Act specifically con-templates the use of medical marijuana in New Mexico as a form of medical treat-ment for certain conditions. 21 U.S.C. § 812 (2012); see Gonzales v. Raich, 545 U.S. 1, 27 (2005) (stating that “by character-izing marijuana as a Schedule I drug, Congress expressly found that the drug has no acceptable medical uses”); Sections 26-2B-2 to -7. Third, Joel Gelinas’ note is much too unclear to reach a conclusion that Dr. Esparza had adopted any office policy regarding referral of patients to their primary care doctors “for evalua-tion of a workers’ compensation injury” because of any concern about medical marijuana.{23} We also do not believe that the testimony of Dr. Adams undercuts the WCJ’s conclusion that medical marijuana constituted reasonable and necessary medical care. Dr. Adams, a psychologist, recommended in his IME report that he supported Worker’s “request to begin medical cannabis use to control her pain” and that “her request seems reasonable and appropriate.” In his deposition tes-timony, he again stated that he thought that medical marijuana was reasonable and advisable for treatment of Worker’s pain. Although Dr. Adams did not state, as Employer contends, that “Worker’s use of medical marijuana was a medical neces-sity,” the absence of such testimony does not demonstrate that the WCJ’s conclusion is unsupported by substantial evidence based on the evidence as a whole.CONFLICT WITH FEDERAL LAW{24} Employer additionally argues that the WCJ’s order requiring it to reimburse Worker raises a conflict between federal and state law and that, with such conflict,

the federal law preempts state law, render-ing the WCJ’s order without effect. This argument presents an issue of law that we review on a de novo basis. See Largo v. Atchison, Topeka & Santa Fe Ry. Co., 2002-NMCA-021, ¶ 5, 131 N.M. 621, 41 P.3d 347 (stating that federal preemption is a question of law that the Court reviews de novo).{25} We agree with Employer that the Controlled Substances Act (CSA), 21 U.S.C. §§ 801-904 (2012) conflicts with the Compassionate Use Act in that the CSA does not except marijuana used for medical purposes from its prohibition of possession or distribution of even small amounts of marijuana. 21 U.S.C. §§ 812, 822, 823(f); Gonzales, 545 U.S. at 27 (stat-ing that the CSA “designates marijuana as contraband for any purpose”). In Vial-pando, we recognized that “the Supremacy Clause dictates that any conflict between the Compassionate Use Act and the CSA would be resolved in favor of the CSA.” Vialpando, 2014-NMCA-084, ¶ 15.{26} Nonetheless, we declined to reverse the WCJ’s order in Vialpando based on ei-ther federal law or public policy, observing that the employer had not demonstrated that the order would have required it to violate a federal statute and that federal public policy was ambiguous in contrast with New Mexico’s clear public policy expressed in the Compassionate Use Act. Id. ¶¶ 15-16. Employer would distinguish Vialpando on two grounds: (1) a second memorandum issued by the United States Department of Justice (Department of Justice) subsequent to the memorandum discussed in Vialpando indicates that New Mexico law does not meet the stan-dard contemplated by the Department of Justice; and (2) in contrast to Vialpando, Employer has identified the federal statute that would embrace Employer’s activity in carrying out the WCJ’s order.{27} As to the initial memorandum, in Vialpando we discussed the memorandum from James M. Cole, Deputy Attorney General, to All United States Attorneys, entitled Guidance Regarding Marijuana Enforcement, dated August 29, 2013. Vi-alpando, 2014-NMCA-084, ¶ 16. We noted that the memorandum was not dispositive, but included “equivocal statements about state laws allowing marijuana use for medical and even recreational purposes.” Id. We observed that, although the memo-randum affirmed that the CSA declared marijuana to be illegal and that federal prosecutors would continue to enforce the

CSA, the memorandum identified eight areas of enforcement priority that did not include medical marijuana. Id. ¶ 16 n.1. Beyond those priorities, the memorandum indicated that the Department of Justice “would generally defer to state and local authorities.” Id. ¶ 16.{28} According to Employer, the New Mexico statutory and regulatory scheme is not sufficient to satisfy Department of Justice requirements that justify def-erence to state law. Employer points to language in the second memorandum that indicates that the Department of Justice’s position “rested on the expectation that states that have enacted laws authorizing marijuana-related conduct will implement clear, strong and effective regulatory and enforcement systems in order to minimize the threat posed to federal enforcement priorities.” Memorandum from James M. Cole, Deputy Attorney General, to All United States Attorneys, Guidance Regard-ing Marijuana Financial Related Crimes (February 14, 2014).{29} More particularly, Employer argues that the Workers’ Compensation Act and the Compassionate Use Act do not meet the standard set forth in the second memorandum. However, as we stated in Vialpando, the New Mexico Legislature adopted the Compassionate Use Act “to allow the beneficial use of medical can-nabis in a regulated system for alleviating symptoms caused by debilitating medical conditions and their medical treatments.” 2014-NMCA-084, ¶ 16 (quoting Section 26-2B-2 (internal quotation marks omit-ted)). It is not clear the manner in which any deficiency in this system is an issue in this case, and Employer’s arguments in this regard are not specific.{30} Employer seems to fault the WCJ for failing to provide oversight for Worker’s purchase and use of medical marijuana by failing to provide a mechanism by which Worker would be responsible for dem-onstrating her purchases are consistent with law or that would allow Employer to investigate “the legitimacy” of Worker’s purchases. But, the WCJ’s amended compensation order requires Employer’s reimbursement only upon Worker submit-ting timely receipts for medical marijuana “purchased consistent with law.” Worker demonstrated that she was a certified participant in the medical marijuana program. If Employer is not satisfied that Worker is submitting “legitimate” receipts, Employer has recourse through the Work-ers’ Compensation Act and the Workers’



http://www.nmcompcomm.us/Advance OpinionsCompensation Administration. See NMSA 1978, § 52-10-1(A) (1990) (requiring that a health care provider release to an employer or employer’s insurer, upon request, medical bills related to medical care service provided to a worker); see also NMSA 1978, § 52-5-1.3 (2013) (requiring the Workers’ Compensation Administra-tion’s Enforcement Bureau to investigate fraudulent conduct concerning the pay-ment of benefits to a worker).{31} To the extent that Employer argues that the New Mexico laws and regulations are not sufficient to obviate Employer’s exposure to violation of federal law, its argument overlaps with the second aspect of its argument to distinguish Vialpando—that it has identified its continued federal exposure. According to Employer, if it were to follow the WCJ’s order, and despite the Department of Justice’s memoranda, it would be civilly responsible for violation of the CSA by way of conspiracy or aid-ing and abetting. As distinguished from Vialpando, Employer cites the federal

statutes it believes would implicate him, 21 U.S.C. § 841A(a) (prohibiting a person from knowingly possessing a controlled substance as defined by federal law and in an amount specified by the United States Attorney General); 21 U.S.C. § 846 (prohibiting a person from attempting or conspiring to commit a violation of federal law related to controlled substances under 21 U.S.C., Chapter 13, Subchapter 1); 18 U.S.C. § 2(a) (2012) (“Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.”).{32} However, Employer’s argument raises only speculation in view of existing Department of Justice and federal policy. Nothing in the Department of Justice’s second memorandum alters its position regarding the areas of enforcement set forth in the initial memorandum. Medical marijuana is not within the list. Moreover, on December 16, 2014, the Consolidated and Further Appropriations Act of 2015 to

fund the operations of the federal govern-ment was enacted. It states that “[n]one of the funds made available in this Act to the Department of Justice may be used, with respect to the [s]tates of . . . New Mexico, . . . , to prevent such States from implement-ing their own State laws that authorize the use, distribution, possession or cultivation of medical marijuana.” We reach the same conclusion that we did in Vialpando. In view of the equivocal federal policy and the clear New Mexico policy as expressed in the Compassionate Use Act, we decline to reverse the WCJ’s amended compensation order.CONCLUSION{33} We affirm the amended compensa-tion order.{34} IT IS SO ORDERED.

JAMES J. WECHSLER, Judge

WE CONCUR:RODERICK T. KENNEDY, JudgeM. MONICA ZAMORA, Judge






STATE OF NEW MEXICO,Plaintiff-Appellee,

v.MANUEL FERNANDEZ,Defendant-Appellant

Docket No. 32,564 (filed June 30, 2015)

APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY SARAH C. BACKUS, District Judge

HECTOR H. BALDERASAttorney General

Santa Fe, New MexicoJANE A. BERNSTEIN

Assistant Attorney GeneralAlbuquerque, New Mexico

for Appellee

JORGE A. ALVARADOChief Public Defender

J. K. THEODOSIA JOHNSONAssistant Appellate Defender

Santa Fe, New Mexicofor Appellant

Opinion

Cynthia A. Fry, Judge{1} Defendant appeals from his conviction for criminal damage to property valued in excess of $1000 on the ground of insuf-ficiency of the evidence. He also appeals from his sentencing as a habitual offender, arguing that the State made no prima facie showing of three prior usable felonies. We agree that the evidence for Defendant’s felony conviction was insufficient and therefore reverse.BACKGROUND{2} On December 5, 2010, David Satrun, the victim, encountered a green Dodge Durango driving erratically and aggres-sively. The driver of the Durango, later identified as Defendant, passed Satrun more than once before getting out of his vehicle to yell at Satrun and kick Satrun’s door. Satrun drove away, but Defendant followed and struck the back of Satrun’s vehicle with his Durango. Defendant then pulled up alongside Satrun’s door, pinning it shut. Satrun again drove away from De-fendant to a gas station, where he called the police. At the time of the accident, Satrun was driving a 1998 white GMC pickup.{3} Defendant was eventually arrested and charged with seven counts: aggravated assault with a deadly weapon (Counts 1 and 2); criminal damage to property in excess of $1000 (Count 3); driving with a suspended license (Count 4); leaving

the scene of an accident (Counts 5 and 6); and concealing identity (Count 7). He was convicted on Counts 3, 5, 6, and 7, and sentenced as a habitual offender on the ground that he had three usable prior felo-nies. Defendant appeals on two grounds: (1) the evidence was insufficient to prove the amount of property damage to Satrun’s pickup, making Count 3 unsustainable; and (2) the enhanced sentence was not legal because the State did not provide adequate proof that the out-of-state felony conviction used during sentencing was actually his.DISCUSSION{4} We review claims as to the sufficiency of the evidence “in the light most favorable to the guilty verdict, indulging all reason-able inferences and resolving all conflicts in the evidence in favor of the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. However, we must also determine whether sub-stantial evidence exists “and supports a verdict of guilt beyond a reasonable doubt with respect to every element essential for conviction.” State v. Kent, 2006-NMCA 134, ¶ 10, 140 N.M. 606, 145 P.3d 86. If the evidence presented “must be buttressed by surmise and conjecture, rather than logi-cal inference[,]” it will not be sufficient to support a conviction. State v. Vigil, 1975-NMSC-013, ¶ 12, 87 N.M. 345, 533 P.2d 578 (internal quotation marks and citation omitted). In making this determination, we do not in any way “substitute [our]

judgment for that of the factfinder.” State v. Mora, 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789, abrogation on other grounds recognized by Kersey v. Hatch, 2010-NMSC-020, ¶ 17, 148 N.M. 381, 237 P.3d 683.{5} To convict Defendant of felony criminal damage to property, the State was required to prove beyond a reasonable doubt both that Defendant intentionally damaged the property of another and that the amount of damage exceeded $1000. See NMSA 1978, § 30-15-1 (1963); UJI 14-1501 NMRA. In accordance with UJI 14-1510 NMRA, the “amount of damage” is defined as:

the difference between the price at which the property could ordi-narily be bought or sold prior to the damage and the price at which the property could be bought or sold after the damage. If the cost of repair of the damaged property exceeds the replacement cost of the property, the value of the damaged property is the replace-ment cost.

{6} During the trial, the State offered substantial evidence of damage to Satrun’s pickup, including several photographs of the truck taken by a sheriff ’s deputy. Satrun testified to further explain the damage, claiming that his back bumper was “destroyed,” his tailgate misaligned, and that Defendant’s kick to his front door left a severe dent. He admitted that some of the damage pictured had been incurred during previous accidents. All told, Satrun testified that the cost to repair the damage Defendant inflicted was about $1500 or $1600.{7} Defendant does not dispute that the cost of repair was over $1000, but he argues that “the mere cost of repair was insuffi-cient—the State had to prove that the cost of replacement was not less than the cost of repair.” The State did not offer testimony as to the condition of the pickup, its mileage, or its likely replacement cost, arguing that “there is no absolute requirement” that it do so.{8} The instruction UJI 14-1510 provides two ways of determining the amount of damage: “diminution in value” and “cost of repair.” State v. Barreras, 2007-NMCA-067, ¶¶ 5-6, 141 N.M. 653, 159 P.3d 1138. The first method, “diminution in value,” is the “before[-]and[-]after value” of the property. Id. ¶ 5. The second method, at is-sue here, is the “cost of repair.” In Barreras, the defendant used a tire iron to damage



http://www.nmcompcomm.us/Advance Opinionsa one-year-old Cadillac Escalade that was previously in good condition. Id. ¶ 2. The cost to repair the damage was $5100, but the State offered no specific evidence as to replacement cost. Id. ¶¶ 2, 8. The defendant argued on appeal that “to prove the amount of damages under the second method, the State must present evidence of both the cost of repair and the cost of replacement so that the jury can compare them to determine if the cost of repair exceeds the replacement cost.” Id. ¶ 8. We rejected that argument for two reasons: (1) the defendant did not “seriously place in dispute on appeal” whether the replacement cost exceeded the cost of repair; and (2) the “average juror” would be aware that the replacement cost of the Cadillac would be higher than the cost of repair. Id. ¶ 9. We reasoned that “if the cost of repair does not exceed the replacement cost of the property, then the cost of repair is the value used to determine the amount of damage.” Id. ¶ 6. Because the jurors “would know that such a high-end sport utility vehicle has a replacement cost well over $5100[,]” the cost of repair was the appropriate value to use. Id. ¶ 9.{9} As we noted in Barreras, however, “[e]vidence of replacement cost may be necessary where the vehicle is older and/or made by a lesser-named manufacturer” than the one-year-old Cadillac at issue in that case. Id. ¶ 9. As our Supreme Court has recently affirmed, the amount of dam-age is “the cost of repair or replacement, whichever is less.” State v. Cobrera, 2013-NMSC-012, ¶ 8, 300 P.3d 729 (emphasis added). In some cases, as in Barreras, the facts may clearly establish that the replacement cost would exceed the cost of repair and no additional evidence or testimony may be required; nonetheless, the replacement cost remains part of the State’s burden. Id.; Barreras, 2007-NMCA-067, ¶ 9.{10} In the present case, the “average juror” had no basis upon which to deter-

mine that the replacement cost of Satrun’s pickup truck, which was over a decade old and had noticeable preexisting damage, would be “well over” the $1500 cost of repair. Barreras, 2007-NMCA-067, ¶ 9. The State observes that the jury was given “photographs of [Satrun’s] stricken truck” in addition to the testimony regarding the cost of repair, but the photographs included evidence of unrelated cosmetic damage, dirt, and general wear. Without further information regarding the pickup, such as its mileage, the photographs could not provide a sufficient basis for conclud-ing that the replacement cost would be greater than the cost of repair. Exactly as contemplated in Barreras, this case required the State to submit evidence as to such replacement cost so that the jury could reasonably determine whether it exceeded the cost of repair or not. 2007-NMCA-067, ¶ 9.{11} The State suggests that Defendant waived the issue of the pickup’s proper valuation when he failed to cross-examine the State’s witnesses on the replacement cost. Because this is not an affirmative defense but rather a matter of the State’s own burden, Defendant bore no obligation to offer or contest evidence that the State itself did not present. State v. Munoz, 1998-NMSC-041, ¶ 15, 126 N.M. 371, 970 P.2d 143. Furthermore, whatever his strategy in cross-examination, Defendant has “seri-ously place[d] in dispute on appeal” that the pickup was worth the $1,500 cost of repair, given its age, previous damage, un-known mileage, and unknown mechanical condition. Barreras, 2007-NMCA-067, ¶ 9.{12} This case is therefore distinguish-able from Barreras and, by refusing to offer evidence regarding replacement cost, the State has failed to meet its burden for felony property damage beyond a reason-able doubt.{13} In some cases, “appellate courts have the authority to remand a case for entry of

judgment on the lesser included offense and resentencing rather than retrial when the evidence does not support the offense for which the defendant was convicted but does support a lesser included offense.” State v. Haynie, 1994-NMSC-001, ¶ 4, 116 N.M. 746, 867 P.2d 416. The “direct remand” rule does not apply, however, in cases in which the jury was not instructed on a lesser included offense. State v. Villa, 2004-NMSC-031, ¶¶ 9, 12, 136 N.M. 367, 98 P.3d 1017.{14} Here, the jury was not instructed on lesser-included offenses, such as mis-demeanor property damage amounting to less than $1000. When the State only instructs on the greater offense, we will not second-guess its “all-or-nothing trial strategy,” id. ¶ 14, because to convict De-fendant of an offense with which the jury was never presented would deprive him of notice and be inconsistent with our law. State v. Slade, 2014-NMCA-088, ¶ 38, 331 P.3d 930. Therefore, we will not remand for resentencing Defendant for misdemeanor property damage where the evidence is insufficient to demonstrate the requisite amount of damages for a felony conviction.CONCLUSION{15} For the reasons stated above, we re-verse Defendant’s conviction as to Count 3, for criminal damage to property valued in excess of $1000. Because all the remaining counts of which Defendant was convicted are misdemeanors, the habitual sentencing enhancement is no longer at issue. See NMSA 1978, § 31-18-17(A) (2003) (apply-ing to “[a] person convicted of a noncapital felony” who has one or more prior felony convictions).{16} IT IS SO ORDERED.

CYNTHIA A. FRY, Judge

WE CONCUR:JAMES J. WECHSLER, JudgeRODERICK KENNEDY, Judge




Certiorari Granted, August 26, 2015, No. 35,398



ISABEL ARMENTA, Personal Representative for ESTATE OF MANUEL ARMENTA, Deceased,

Plaintiff-Appellant,v.

A.S. HORNER, INC., a New Mexico corporation, JOHN DOE I and JOHN DOE II,

Defendants-AppelleesDocket No. 33,813 (filed June 10, 2015)

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTYCLAY CAMPBELL, District Judge

MEL B. O’REILLYLAW OFFICE OF MEL B. O’REILLY, LLC

Albuquerque, New Mexicofor Appellant

THOMAS L. JOHNSON ANDREW L. JOHNSON

JOHNSON LAW FIRM, L.C.Albuquerque, New Mexico

for Appellee

Opinion

Michael D. Bustamante, Judge{1} In this appeal from the grant of sum-mary judgment to A.S. Horner, Inc. (De-fendant), we address whether there exist disputed material facts as to (1) whether the Workers’ Compensation Act provides the exclusive remedy for Isabel Armenta’s claim, and (2) whether Defendant neg-ligently entrusted one of its vehicles to Manuel Armenta (Manuel), Plaintiff ’s husband and decedent. We reverse.BACKGROUND{2} Isabel Armenta, (Plaintiff), personal representative of the estate of her husband, Manuel, brought suit against Manuel’s employer, Defendant, for negligent en-trustment after Manuel was killed in a single-car accident while driving Defen-dant’s vehicle. The undisputed facts leading to Manuel’s death are as follows. Manuel and a number of other workers were sent to Springer, New Mexico, to work on road maintenance on I-25. Defendant arranged for motel rooms for some of its workers, including Manuel, while they were in Springer. During the last week of work in Springer, Defendant provided a Chevy Suburban vehicle to transport some of the workers from Albuquerque to Springer.{3} Because Manuel had been convicted for driving while intoxicated in 2001, De-

fendant’s safety director had determined that Manuel would not be permitted to drive Defendant’s vehicles, and he was listed on Defendant’s “do not drive” list. Nevertheless, although the parties dispute whether Manuel was issued the Suburban in Albuquerque, they agree that at some point Manuel drove the vehicle after it was picked up from Defendant’s facility. They also agree that after work on the day of the accident, Manuel drove the Sub-urban from the motel to the grocery and liquor stores and returned with supplies for a barbecue with the other employees. The employees at the motel, including Manuel’s supervisor, had pitched in money to purchase these supplies. Both Manuel’s supervisor and a superinten-dent employed by Defendant knew that Manuel had driven the Suburban to or while in Springer. The superintendent had advised Manuel in the week before the accident that Defendant’s vehicles were supposed to be parked after work hours, except that they could be used to pick up supplies needed for the night. In addition, on the evening of the accident, after eating dinner with the employees and as he was leaving for his room, Manuel’s supervisor told the employees, including Manuel, “to drink moderately and to not leave [the motel].”{4} In spite of this warning, Manuel and another employee left the motel in the

Suburban headed toward Raton. Manuel was killed in an accident about five miles north of Springer on I-25. Manuel’s blood alcohol concentration (BAC) was .23 at the time of his death.DISCUSSION{5} Defendant argued in the motion for summary judgment that Plaintiff ’s claims “are barred by the exclusivity provisions of the Workers’ Compensation Act” or, alternatively, “Plaintiff cannot meet the requisite evidentiary standard of gross negligence and reckless disregard set forth in Sanchez v. San Juan Concrete Co., 1997-NMCA-068, 123 N.M. 537, 943 P.2d 571.” It is not clear from the district court’s order on which basis summary judgment was granted. Defendant points to the district court’s oral rulings as evidence that summary judgment was granted on the ground that the Workers’ Compensa-tion Act was Plaintiff ’s exclusive remedy. But “[a district] court’s oral statements as to the basis for its ruling, made before judgment is entered, and not embodied therein, cannot be considered part of the judgment.” In re Adoption of John Doe, 1982-NMCA-094, ¶ 49, 98 N.M. 340, 648 P.2d 798. We therefore consider whether summary judgment is appropriate under either theory advanced by Defendant.A. Workers’ Compensation{6} Defendant argues that the Workers’ Compensation Act (the Act) provides the exclusive remedy for Plaintiff ’s claim because Manuel was a traveling employee covered by the Act at the time of the accident. See NMSA 1978, §§ 52-1-1 to -70 (1929, as amended through 2013). Generally, “the Act makes workers’ com-pensation benefits the worker’s exclusive remedy for all accidental injuries.” Salazar v. Torres, 2007-NMSC-019, ¶ 11, 141 N.M. 559, 158 P.3d 449; see § 52-1-9; see also § 52-1-6(E) (“The Workers’ Compensation Act provides exclusive remedies.”). Section 52-1-19 precludes compensation under the Act for injuries suffered while going to work or returning home from work. This provision is known as the “going-and-coming rule.” Ramirez v. Dawson Prod. Partners, Inc., 2000-NMCA-011, ¶ 7, 128 N.M. 601, 995 P.2d 1043. The exception to the going-and-coming rule invoked by Defendant is known as the “traveling-employee exception.” Id. (internal quota-tion marks omitted).{7} Under the “traveling-employee ex-ception,” “[t]he general rule is that an employee whose work entails travel away from the employer’s premises is, in most



http://www.nmcompcomm.us/Advance Opinionscircumstances, under continuous work-ers’ compensation coverage from the time he leaves home until he returns.” Id. ¶ 11 (internal quotation marks and citation omitted). “The rationale behind the trav-eling[-]employee rule is that an employee who is required to travel away from home is furthering the business of his employer as he eats, sleeps, and performs other acts necessary to his health and comfort during his travels.” Id. ¶ 12 (internal quotation marks and citation omitted). A traveling employee is one who travels to various locations as an integral part of his or her work. Id. ¶ 11.{8} Since the exception applies during the entire time the employee is travel-ing, it necessarily encompasses injuries incurred while the employee is not actu-ally working, such as when the employee is engaged in leisure or recreational ac-tivities. Id. ¶ 13. However, “one seeking compensation for an injury must still demonstrate that the injury arose out of and in the course of employment.” Id. ¶ 14 (internal quotation marks and citation omitted); see § 52-1-9(B). As it pertains to leisure and recreational activities by traveling employees, this requirement is “met if the traveling employee was injured while engaging in an activity that was both reasonable and foresee-able[,]” id. ¶ 15, and if that activity is not “conducted in an unreasonable or unforeseeable manner.” Id. ¶ 16. Finally, the activity “must confer some benefit on the employer; . . . it must be reasonably related or incidental to employment.” Id. “The benefit to the employer need not be pecuniary, and may be as intangible as a well-fed and well-rested employee.” Id. ¶ 17.{9} A number of factors define whether a traveling employee’s activity falls within the reach of the Act. These include “whether the injury takes place within the period of employment, at a place where the employee may reasonably be, and while the employee is reasonably fulfill-ing the duties of employment or doing something incidental to it.” Chavez v. ABF Freight Sys., Inc., 2001-NMCA-039, ¶ 11, 130 N.M. 524, 27 P.3d 1011 (internal quotation marks and citation omitted). The Chavez Court stated the factors as “whether the activity was reasonable and foreseeable; whether the injury oc-curred during a distinct departure from employment for a personal errand; whether the activity was conducted in an unreasonable or unforeseeable man-

ner; and whether the activity giving rise to the injury conferred some benefit on the employer.” Id.; see also Rodriguez v. Permian Drilling Corp., 2011-NMSC-032, ¶ 14, 150 N.M. 164, 258 P.3d 443 (listing additional factors). These factors “repre-sent an attempt to draw the line between conduct reasonably related to employ-ment and conduct that is so foreign to and removed from the employee’s usual employment as to constitute an abandon-ment thereof.” Chavez, 2001-NMCA-039, ¶ 12 (alteration, internal quotation marks, and citation omitted).{10} Instead of disputing the basic facts related to the traveling-employee excep-tion, Defendant simply argues that the exception applies and, therefore, the Act is Plaintiff ’s exclusive remedy. For the most part, Plaintiff does not contest that Manuel was a traveling employee. Rather, Plaintiff argues that Manuel was not in the scope and course of employment when the accident occurred. Plaintiff also argues that Manuel’s conduct was unreasonable and therefore did not fall within the type of leisure activities en-compassed by the Act. Although whether an employee is acting within the course of employment for purposes of the traveling-employee exception is gener-ally a question of fact, when the relevant facts are undisputed an appellate court may resolve the issue as a matter of law. See City of Santa Fe v. Hernandez, 1982-NMSC-036, ¶ 6, 97 N.M. 765, 643 P.2d 851 (stating that an appellate court may determine whether an employee was in the scope of employment as a matter of law based on undisputed facts); Flavor-land Indus., Inc. v. Schumacker, 647 P.2d 1062, 1066 (Wash. Ct. App. 1982) (stating that “[w]hether [the decedent’s] intoxica-tion constituted an abandonment of his employment was for the jury to decide”). We agree with Plaintiff that given the undisputed facts here, Manuel was not within the course of employment when he left the motel in the Suburban in an intoxicated state. {11} First, the parties agree that Manuel was headed to Raton, that Defendant had no business interests in Raton, and that Manuel was not instructed to go to Raton and was, in fact, instructed not to leave the motel. Indeed, Defendant agrees that Manuel “took the vehicle to party in Raton.” Thus, there was no reason related to his employment for Manuel to be driving the Suburban at all. Second, there is also no dispute that Manuel had

been drinking alcohol before he got in the Suburban, that he was intoxicated while driving, and that an autopsy after the accident found that Manuel’s BAC was .23. Even if Manuel’s decision to take the vehicle for a ride could be considered foreseeable and reasonable conduct un-der the traveling-employee exception, doing so under the significant influence of alcohol was not reasonable. Ramirez, 2000-NMCA-011, ¶ 16 (agreeing with other courts holding that “injury incurred in an otherwise reasonable and foreseeable recreational activity will not be compen-sable if the activity was conducted in an unreasonable or unforeseeable manner”); cf. Estate of Mitchum v. Triple S Trucking, 1991-NMCA-118, ¶ 18, 113 N.M. 85, 823 P.2d 327 (holding that the evidence, including a BAC of .141, the employee’s admission that he had been drinking the night before the accident, beer cans found in his truck, and testimony that he smelled of alcohol, was sufficient to show that the employee was intoxicated); see NMSA 1978, § 66-8-102(C)(1), (D)(1) (2010) (stating that it is unlawful to drive with a BAC neof over .08 and that driving with a BAC of over .16 constitutes aggravated driving while intoxicated). Furthermore, no benefit can have been conferred on Defendant by Manuel’s drinking exces-sively. See Ramirez, 2000-NMCA-011, ¶ 16 (stating that “the activity giving rise to the injury must confer some benefit on the employer”). We conclude that under these facts, Manuel was not within the course of his employment at the time of the accident. Cf. Fernandez v. Lloyd McKee Motors, Inc., 1977-NMCA-045, ¶ 4, 90 N.M. 433, 564 P.2d 997 (holding that an employee was not in the scope of his employment where the employee was driving his employer’s vehicle while in-toxicated, was not pursuing the employer’s business, and did not have permission to drive the vehicle at that time); Phelps v. Positive Action Tool Co., 497 N.E.2d 969, 971 (Ohio 1986) (stating that “voluntary intoxication which renders an employee incapable of performing his work is a departure from the course of employment [and that] when the employee is injured in that condition, his injury does not arise out of his employment” and holding that an employee with .21 percent BAC was “grossly intoxicated”); Am. Safety Razor Co. v. Hunter, 343 S.E.2d 461, 463 (Va. Ct. App. 1986) (“An employee may abandon his employment by reaching an advanced state of intoxication which renders the



http://www.nmcompcomm.us/Advance Opinionsemployee incapable of engaging in his du-ties.”)1; see generally 3 A. Larson, Larson’s Workers’ Compensation Law, § 36.02 (2014). Hence, the Act does not apply to Plaintiff ’s claim. To the extent the district court granted summary judgment on this basis, we reverse.B. Negligent Entrustment{12} We turn next to whether summary judgment could properly be granted on Plaintiff ’s negligent entrustment claim. We begin with an overview of the law of negligent entrustment. New Mexico has adopted the general definition of negli-gent entrustment from the Restatement (Second) of Torts. See Hermosillo v. Lead-ingham, 2000-NMCA-096, ¶ 19, 129 N.M. 721, 13 P.3d 79. Section 308 states that

[i]t is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.

Restatement (Second) of Torts § 308 (1965). Consistent with this definition, “the burden is upon the plaintiff to estab-lish that [t]he motor vehicle was driven with the permission . . . of the defendant[; t]he entrustee was . . . an incompetent driver[; and t]he defendant had actual or constructive knowledge, . . . that the entrustee was incompetent.” 8 Am. Jur. 2d Automobiles § 1109 (2015); see Spencer v. Gamboa, 1985-NMCA-033, ¶ 8, 102 N.M. 692, 699 P.2d 623 (stating that to prevail on a vehicle negligent entrustment claim, a “plaintiff must show that the defendant loaned the car to a person it either knew or should have known was an incompe-tent driver, and the driver’s incompetence caused the injury”). Another section, Section 390, “states a specialized rule pertinent to automobiles.” Gabaldon v. Erisa Mortg. Co., 1997-NMCA-120, ¶ 26, 124 N.M. 296, 305, 949 P.2d 1193, aff ’d in part, rev’d in part on other grounds, 1999-NMSC-039, 128 N.M. 84, 990 P.2d 197. Section 390 provides that

One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or other-wise, to use it in a manner involv-ing unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.

Restatement (Second) of Torts § 390 (1965). A central feature of these defini-tions is the act of entrustment, or permis-sion, to use the vehicle. See 61 C.J.S. Motor Vehicles § 956 (2015) (stating that “in order that the doctrine apply, it is essential that the person sought to be held legally responsible have the right of control over the vehicle. Permission, either express or implied, is thus a prerequisite to a suit for negligent entrustment of an automobile.” (footnote omitted)). In Gabaldon, this Court observed that an important aspect of Section 308 of the Restatement (Second) of Torts “is the idea that the ‘third person is entitled to possess or use the thing or engage in the activity only by the consent of the actor, and that the actor has reason to believe that by withholding consent he can prevent the third person from using the thing or engaging in the activity.’ ” Gabaldon, 1997-NMCA-120, ¶ 27 (quot-ing Section 308 cmt. a of the Restatement (Second) of Torts). Hence a number of negligent entrustment cases hinge on the presence or absence of such consent. See, e.g., McManus v. Taylor, 756 S.E.2d 709, 713 (Ga. Ct. App. 2014) (“Where the uncontroverted evidence shows that [the driver] took the [vehicle] without [the owner’s] permission and knowledge, it cannot be said that [the owner] lent [the driver] the car or otherwise entrusted him with it.”); Butler v. Warren, 582 S.E.2d 530, 532-33 (Ga. Ct. App. 2003) (holding there was no entrustment where the driver had permission to drive a truck on the owner’s property but not off of it); Evans v. Shannon, 776 N.E.2d 1184, 1193 (Ill. 2002) (holding that where “there was no

express or implied permission granted to [the driver] to use the vehicle at the time the collision occurred[,] there was no entrustment.”).{13} This principle obviously extends to preclude a negligent entrustment claim where the owner has prohibited the driver from using the vehicle. Thus, negligent entrustment does not “impose liability upon the alleged ‘trustor’ for the negli-gent operation of a vehicle which he had expressly forbidden the alleged ‘trustee’ to drive.” Farney v. Herr, 358 S.W.2d 758, 761 (Tex. Civ. App. 1962); accord Favorito v. Pannell, 27 F.3d 716, 721 (1st Cir. 1994) (“The authorities are in substantial accord that where the alleged entrustor has pro-hibited the entrustee from operating the automobile or using the instrumentality in question, there is no responsibility because there has been no entrustment.” (internal quotation marks and citation omitted)).{14} Typical vehicle negligent entrust-ment claims involve claims against an entrustor by a person injured by a driver. It is clear that under New Mexico law such “third-party claims” are recognized. Sanchez, 1997-NMCA-068, ¶ 11 (“[O]ne who negligently entrusts a motor vehicle to an incompetent driver may be liable for injury to a third person caused by the driver’s incompetence.”). In Sanchez, this Court examined for the first time whether “first-party claims” would also be recognized. In other words, is an entrustor liable to the entrustee when the entrustee is injured “as a result of driving while intoxicated[?]” Id. ¶ 12. The Court began by noting that the holding in Trujillo v. Trujillo, 1986-NMCA-052, ¶ 1, 104 N.M. 379, 721 P.2d 1310, which was that “a tav-ernkeeper who unlawfully serves alcohol to an intoxicated patron is [not] civilly liable for injuries suffered by the patron as a result of that act[,]” was later restricted by statute. Sanchez, 1997-NMCA-068, ¶ 16. After passage of NMSA 1978, Section 41-11-1(B) (1986), “if the tavernkeeper acted with gross negligence and reckless disregard for the patron’s safety, the tav-ernkeeper may be liable to the patron.” Sanchez, 1997-NMCA-068, ¶ 16. Because it concluded that the balance of policy

1We note that Fernandez, Phelps, and American Safety Razor Co. did not address the course of employment question in the context of the traveling-employee exception, and that the analysis in those cases hinged on whether the employee could carry out his or her duties despite being intoxicated. Here, Manuel was not engaged in carrying out his duties. Consequently the facts in these cases are not directly apposite. Nevertheless, we cite these cases for the general principle that severe intoxication can constitute conduct “so foreign to and removed from the employee’s usual employment as to constitute an abandonment thereof.” Chavez,2001-NMCA-039, ¶ 12 (alteration, internal quotation marks, and citation omitted). Citation to these cases cannot be read to limit our general case law concerning the effect of intoxication on compensability under the law.



http://www.nmcompcomm.us/Advance Opinionsconcerns evident in Section 41-11-1(B) justified extension of this framework to entrustors, the Court held that “one who entrusts a motor vehicle to an intoxicated person may be liable to the entrustee if the entrustor acts with gross negligence and reckless disregard for the safety of the entrustee.” Sanchez, 1997-NMCA-068, ¶ 20.{15} In Sanchez, the entrustee stated in an affidavit that he told the entrustor, his employer, that he was “drunk, tired, hung over[,] and unfit to operate [a] cement truck.” Id. ¶ 26. Nevertheless, the employer “refused to let [him] off work, and ordered [him] to get [his] truck, load up and begin [his] runs for the day.” Id. Even though the entrustee told the employer again later in the day that he was drunk and unfit to drive the cement truck, the employer again refused to release him and “told [him he would] be fired if [he] did not continue to work that day.” Id. The entrustee was injured in a single-car accident in the ce-ment truck. Id. ¶ 2. The Court concluded that the fact finder could determine that the entrustee “was ordered to drive his truck despite the fact that he was visibly intoxicated, said he was intoxicated, and asked to be relieved of duty.” Id. ¶ 28. It further concluded that “[i]f such facts were found, the fact finder could decide that the [employer] acted with gross negligence and reckless disregard for [the entrustee’s] safety when he entrusted [the entrustee] with the [employer’s] truck.” Id. Consequently, summary judgment was improper. Id.{16} But the Sanchez Court did not de-cide “whether an entrustor should be liable to a voluntarily intoxicated entrustee for simple negligence,” calling this question “a more difficult issue.” Id. ¶ 21 (emphasis added). In dicta, the Court recognized that “the language of Trujillo suggests that voluntary intoxication should be treated as a special species of fault” and that “some New Mexico authority treats voluntary intoxication as akin to intentional miscon-duct,” both factors which weigh against al-lowing an intoxicated entrustee to recover from entrustors. Id. ¶ 22 (citing California First Bank v. State, 1990-NMSC-106, ¶ 34 n.6, 111 N.M. 64, 801 P.2d 646). It also recognized, however, that the commentary to Section 390 of the Restatement (Second) of Torts supported liability of entrustors and that this section had been relied upon by the Colorado Supreme Court to per-mit recovery by an intoxicated entrustee. Sanchez, 1997-NMCA-068, ¶ 23 (citing

Casebolt v. Cowan, 829 P.2d 352 (Colo. 1992) (en banc)). Finally, it noted that in adopting comparative negligence prin-ciples, “New Mexico has largely eliminated distinctions between degrees of negligence and there is a strong presumption against introducing them in our tort law.” Id. ¶ 21.{17} In addition to Colorado, a number of states have recognized a first-party negligent entrustment cause of action for the injured entrustee that does not depend on gross negligence. The courts in these cases relied on the fact that in a pure comparative fault system, the entrustor’s negligence is balanced against the intoxi-cated entrustee’s negligence. In Missouri, for example, the Court of Appeals for the Western District followed Section 390 of the Restatement (Second) of Torts to hold that “under a pure comparative fault system (like Missouri’s), a plaintiff will not be barred from recovery, even if his own negligence greatly outweighed that of the defendant.” Hays v. Royer, 384 S.W.3d 330, 336-37 (Mo. Ct. App. 2012). Similarly, the Florida District Court of Appeal for the First District held that “an adult drunken driver who injures himself is entitled to a comparative fault trial predicated on the theory of negligent entrustment.” Gorday v. Faris, 523 So. 2d 1215, 1218 (Fla. Dist. Ct. App. 1988) (agreeing with Section 390 of the Restatement (Second) of Torts and listing states in which a first-party neg-ligent entrustment claim is recognized); accord Herland v. Izatt, 2015 UT 30, ¶ 33, 345 P.3d 661 (stating that “although there are competing social policies that favor and disfavor first-party recovery by an intoxicated individual, nothing bars first-party recovery as a matter of law. As a result, [the plaintiff ’s] estate may argue for recovery, but the estate must overcome the high hurdle of comparative negligence in order to prevail, as would any plaintiff whose injury occurs while he or she is voluntarily intoxicated.”); King v. Petefish, 541 N.E.2d 847, 852 (Ill. App. Ct. 1989) (stating that “a suit brought by an injured entrustee against his entrustor is a viable cause of action in a comparative negligence jurisdiction” and observing that “the [s]tates that have adopted comparative neg-ligence seem to uniformly accept such a cause of action”); Blake v. Moore, 208 Cal. Rptr. 703, 707 (Ct. App. 1984) (stating that the injured plaintiff “is entitled to a comparative fault trial. This should result in a weighing of [the] defendant’s fault in entrusting his car to [the] plaintiff with knowledge of the intoxication, and the

fault of [the] plaintiff in drinking and then driving.”).{18} Other states have refused to recog-nize a first-party claim for an intoxicated entrustee, reasoning that where contribu-tory or modified comparative negligence principles apply, the fault of the intoxicated driver will bar recovery. See, e.g., Lydia v. Horton, 583 S.E.2d 750, 752 (S.C. 2003) (“We believe that this state’s modified comparative negligence system also bars an intoxicated adult’s recovery on a first party negligent entrustment cause of ac-tion. We cannot imagine how one could be more than fifty percent negligent in loaning his car to an intoxicated adult who subsequently injured himself.”); Bailey v. State Farm Mut. Auto. Ins. Co., 881 N.E.2d 996, 1003 (Ind. Ct. App. 2008) (noting that Indiana follows a modified comparative fault system and stating that “one who drives while intoxicated is generally more at fault than one who permits another to drive while intoxicated”); Meachum v. Faw, 436 S.E.2d 141, 145 (N.C. Ct. App. 1993) (stating that “the plaintiffs’ claim is barred by decedent’s contributory negligence as alleged in the complaint”). Finally, some states have held that a first-party claim is contrary to the policy of those states because “an intoxicated person should not generally be permitted to benefit from his or her own intoxication.” Shultes v. Carr, 512 N.Y.S.2d 276, 277 (1987).{19} Clearly the cases premised on con-tributory or modified comparative fault principles are inapposite to New Mexico. We also do not find the blanket prohibition against first-party claims based on policy concerns as stated in Shultes persuasive be-cause some policy interests weigh in favor of permitting a first-party claim. We agree with the Casebolt court “that voluntary in-toxication is socially undesirable conduct and that individual responsibility to refrain from such conduct should be promoted.” 829 P.2d at 362.

These considerations, however, cannot be permitted to obscure the fact that a vehicle owner who has the right and ability to control the use of the vehicle and takes no action to prevent the continued use of the vehicle by a borrower who the owner knows is likely to operate the vehicle while intoxicated is also engaged in morally reprehensible behavior that should be discouraged.

Id. But see Bailey, 881 N.E.2d at 1003 (dis-agreeing with the rationale in Casebolt and



http://www.nmcompcomm.us/Advance Opinionsstating, “We do not believe that allowing drunk drivers to recover from those who allow them to drive drunk significantly furthers the already existing public policy against drunk driving.”). Given that New Mexico adheres to pure comparative neg-ligence principles, we agree with the court in Casebolt that “[c]omparative negligence provides the appropriate framework for examining any negligence on the part of the individual who drives after consuming alcoholic beverages.” 829 P.2d at 362. Thus, we hold that, provided that the elements of negligent entrustment are proven, an entrustee may state a claim for simple neg-ligent entrustment against the entrustor when the entrustee’s voluntary intoxica-tion causes injury. Such claims need not be founded on a showing of gross negligence and reckless disregard as in Sanchez.{20} We now turn back to the facts of the present matter. Plaintiff appeals the grant of summary judgment to Defendant. On appeal, “we view the facts in the light most favorable to the party opposing summary judgment, drawing all inferences in favor of that party” and examine whether “there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.” Gormley v. Coca-Cola En-ters., 2005-NMSC-003, ¶ 8, 137 N.M. 192, 109 P.3d 280 (internal quotation marks and citations omitted). Our review of the latter question is de novo. Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582.{21} To prevail on a negligent entrust-ment claim, Plaintiff must show that “[D]efendant [entrusted] the car to [Manuel when it] knew or should have known [Manuel] was an incompetent driver, and [Manuel’s] incompetence caused the injury.” Spencer, 1985-NMCA-033, ¶ 8. De-fendant makes no argument as to whether Manuel’s intoxication caused the accident. The parties’ arguments focus instead on facts related to the first two elements, including Manuel’s status on Defendant’s “do not drive” list, the supervisor’s knowl-edge that Manuel drove the Suburban to

Springer and to pick up groceries and liquor on the night of the accident, and the supervisor’s knowledge that Manuel was drinking on the night of the accident. Plaintiff argues that “[f]rom these facts, a jury could make the inference that the supervisor showed reckless disregard and utter indifference for [Manuel’s] safety or the safety of others.” We conclude that there is a genuine dispute over whether Defendant entrusted the Suburban to Manuel and therefore conclude that sum-mary judgment on Plaintiff ’s negligent entrustment claim was inappropriate. We explain.{22} As discussed above, permission is an integral part of an entrustment claim. Per-mission may be express or implied. Bishop v. Morich, 621 N.E.2d 43, 45 (Ill. App. Ct. 1993). “Implied permission to use a mo-tor vehicle can be inferred from a course of conduct or relationship between the parties, or other facts and circumstances signifying the assent of the owner.” Allstate Ins. Co. v. Jensen, 1990-NMSC-009, ¶ 8 n.3, 109 N.M. 584, 788 P.2d 340 (discussing im-plied consent in the context of permissive use of an insured vehicle); see Trujillo v. Rivera, 1953-NMSC-064, ¶ 7, 57 N.M. 451, 260 P.2d 365 (holding that the evidence supported a finding of implied consent for a minor child to use a family vehicle).{23} Based on the undisputed facts, Defendant did not expressly permit Manuel to drive the Suburban after din-ner on the evening of the accident. The superintendent told Manuel not to drive the Suburban after work hours except to buy supplies and the supervisor told all the employees at the motel not to drink too much and not to leave the motel on the night of the accident. Thus, Manuel did not have express permission to drive the Suburban after dinner that evening.{24} Whether Manuel had implied per-mission to drive the Suburban that night is a closer question. Plaintiff argues that because Manuel’s superiors knew that he had the keys and had been driving it throughout the week, including that

night, and because the supervisor knew that Manuel had been drinking beer that night, they impliedly consented to his use of the vehicle. Plaintiff also maintains that the superintendent and supervisor should have told Manuel that he could not drive the Suburban and, because they did not object to him driving it, their consent was implied. See Gruger v. W. Cas. & Sur. Co., 1976-NMSC-068, ¶ 5, 89 N.M. 562, 555 P.2d 683 (“Implied permission is found when the insured does not expressly give his consent but consent is implied by his conduct, including lack of objection.”), overruled by United Servs. Auto. Ass’n v. Nat’l Farmers Union Prop. & Cas., 1995-NMSC-014, 119 N.M. 397, 891 P.2d 538.{25} Viewing the undisputed facts in the light most favorable to Plaintiff, we conclude that “a reasonable fact[]finder could draw certain inferences and come to certain conclusions favorable to Plaintiff ’s claim.” Juneau v. Intel Corp., 2006-NMSC-002, ¶ 26, 139 N.M. 12, 127 P.3d 548. Hence, summary judgment on this issue was inappropriate. Having concluded that there are genuine issues of fact related to whether Defendant entrusted the vehicle to Manuel, we need not address whether there are questions of fact related to whether Defendant knew or should have known that Manuel was intoxicated or otherwise incompetent to drive. “Plaintiff is not required to show disputed issues of fact for every element of the claim[.]” Id. ¶ 25.CONCLUSION{26} For the foregoing reasons, we re-verse the grant of summary judgment to Defendant and remand for further pro-ceedings consistent with this Opinion.{27} IT IS SO ORDERED.

MICHAEL D. BUSTAMANTE, Judge

WE CONCUR:CYNTHIA A. FRY, JudgeM. MONICA ZAMORA, Judge




Certiorari Granted, August 26, 2015, No. 35,427



STATE OF NEW MEXICO ex rel. CHILDREN, YOUTH & FAMILIES DEPARTMENT,Petitioner-Appellant,

Concerning JANET MERCER-SMITH and JAMES MERCER-SMITH,Respondents-Appellees

Docket Nos. 31,941/28,294 (filed June 18, 2015)

APPEAL FROM THE DISTRICT COURT OF LOS ALAMOS COUNTYBARBARA J. VIGIL, District Judge

JERRY A. WALZWALZ & ASSOCIATES, P.C.

Albuquerque, New Mexico

HENRY F. NARVAEZBRYAN C. GARCIA

NARVAEZ LAW FIRM, P.A.Albuquerque, New Mexico

DENISE M. CHANEZRODEY, DICKASON, SLOAN, AKIN

& ROBB, P.A.Albuquerque, New Mexico

for Appellant

LARRY D. MALDEGENWILLIAM P. TEMPLEMAN

STEPHEN J. LAUERCOMEAU, MALDEGEN, TEMPLEMAN

& INDALL, LLPSanta Fe, New Mexico

DAN CRONDAN CRON LAW FIRM, P.C.

Santa Fe, New Mexicofor Appellees

Opinion

Michael D. Bustamante, Judge{1} In this case we assess what may be the outer edges of a court’s exercise of its con-tempt power. At the Respondent parents’ (James and Janet Mercer-Smith) urging the district court found the Children, Youth and Families Department (CYFD) in con-tempt of court for contravening the district court’s order concerning foster placement of two of their children in its custody. The Mercer-Smiths then sought, and the district court granted, damages for loss of enjoyment of life because the possibility for reconciliation with their children had been reduced as a result of CYFD’s contemptu-ous conduct. It awarded the Mercer-Smiths over $1.6 million in damages for loss of enjoyment of life and over $2 million in attorney fees and costs for prosecution of the contempt action. We affirm.I. BACKGROUND{2} The case began in 2001 and evolved to encompass four distinct phases—abuse

and neglect, foster placement, contempt, and contempt damages—that we sum-marize in turn. More details are provided as necessary to our discussion of CYFD’s arguments on appeal.A. Abuse and Neglect Petition{3} In February 2001 the Mercer-Smiths’ three daughters, Julia, Rachel, and Allison, were removed from their home based on allegations by Julia and Rachel that they had been abused by their parents. CYFD took custody of the three girls and filed an abuse/neglect petition against the Mercer-Smiths. In August 2001 the Mercer-Smiths and CYFD entered into a stipulated disposition whereby the Mercer-Smiths stipulated that “James Mercer-Smith will enter a plea of no contest to the follow-ing allegations: . . . James Mercer-Smith touched his children Julia and Rachel in a way that made them feel uncomfortable and which they reasonably perceived as sexual.” They also stipulated that “Janet Mercer-Smith will enter a plea of no con-test to the following allegations: . . . Janet Mercer-Smith knew or should have known

that her husband . . . touched their chil-dren Julia and Rachel in a way that made them feel uncomfortable and which they reasonably perceived as sexual.” In return, CYFD agreed to “recommend to the District Attorney that the treatment plan established through the Children’s Court case is the most effective way to address the problems that exist with this family rather than through a criminal prosecution.”{4} The Mercer-Smiths’ pleas were accept-ed by the district court, which ordered that custody of the three girls would remain with CYFD and ordered compliance with a treatment plan. The goal of the treat-ment plan was reunification of the girls with their parents. The abuse and neglect proceedings were effectively concluded by entry of the Mercer-Smiths’ pleas; neither termination of parental rights nor criminal proceedings were ever initiated against the Mercer-Smiths. Several months later, Al-lison was returned to the Mercer-Smiths’ custody.{5} In August 2002 the district court adopted a planned permanent living ar-rangement for Julia and Rachel. After this shift, reunification of Julia and Rachel with their parents was no longer a goal. While in CYFD’s custody, Julia and Rachel lived for approximately eighteen and twenty-eight months, respectively, at Casa Mesita, a treatment group home.B. Placement Hearing and Order{6} In June 2003 CYFD proposed to remove Julia and Rachel from the group home and place Julia with the Schmierer family and Rachel with the Farley family. The Mercer-Smiths objected to this plan on the ground that Jennifer Schmierer and Gay Farley, both of whom had been employees at Casa Mesita, had a conflict of interest (or “dual relationship”) based on their therapeutic relationships with Julia and Rachel at the group home. The Mercer-Smiths were also concerned that living with the Schmierers and Farleys would reduce the possibility of reconcili-ation with their daughters.{7} After several days of hearings, the district court found that the proposed placements would constitute “dual relationship[s]” and “potentially exploi-tive relationship[s].” It concluded that “[CYFD’s] proposed placement of [the girls] into the home of Jennifer and Eric Schmierer [or Dwayne and Gay Farley] constitutes an abuse of discretion.” The district court’s order to this effect (the Placement Order) was entered on Novem-ber 3, 2003.



http://www.nmcompcomm.us/Advance Opinions{8} Following the placement hearing, Rachel and Julia lived for approximately three-and-one-half months with Martin and Jeanne Ritter. After that period, CYFD changed the girls’ living arrangement to “[s]emi [i]ndependent [l]iving.” While living under this arrangement, the girls rented a room from Melissa Brown, Gay and Dwayne Farley’s daughter, who lived a few houses from the Farleys.C. Contempt Proceedings{9} Approximately eight months later, the Mercer-Smiths moved to hold CYFD in contempt for violating the Placement Or-der.1 The parties engaged in discovery and a contempt hearing began in November 2006. The Mercer-Smiths did not present any witnesses, relying instead on their exhibits and CYFD’s responses to requests for admissions, as well as requested admis-sions that were deemed admitted by the district court. CYFD called two witnesses, Rebecca Liggett, CYFD counsel for the Mercer-Smiths’ case, and Carmela Alcon, the county office manager for Protective Services, a CYFD division. The district court entered extensive findings of fact and concluded that “CYFD, as an agency, engaged in activity and took direct actions that were in contempt of the November 3, 2003, [district c]ourt’s [f]indings of [f]act and [c]onclusions of [l]aw and [d]ecision on [p]lacement.” It therefore held CYFD in contempt of court. The district court’s find-ings are discussed in more detail below.D. Contempt Damages{10} A five-day bench trial on damages began in May 2011. The district court also heard additional evidence and argument on October 19, 2011. Sixteen witnesses testified. The Mercer-Smiths argued that they had suffered emotional distress and loss of enjoyment of life and requested compensatory damages for those losses as well as attorney fees and litigation costs incurred in pursuing enforcement of the Placement Order. CYFD made a number of motions to preclude or admit certain ev-idence and to limit damages, the denials of which are discussed in detail below. At the conclusion of the trial, the district court found that “James Mercer-Smith suffered injuries and other harms caused by CYFD’s contemptuous conduct” and that such in-juries included past and future emotional distress, loss of enjoyment of life, and

“psychological expenses,” and awarded compensatory damages of $616,000. It found that Janet Mercer-Smith suffered the same injuries and awarded compen-satory damages of $1 million. Finally, the district court awarded the Mercer-Smiths compensatory attorney fees and litigation costs of $2,034,922, plus applicable gross receipts tax. CYFD appealed.E. General Law of Contempt{11} In order to provide context for the analysis that follows, it is useful to pro-vide an overview of the law of contempt, including generally recognized available remedies. “The district court has inherent power to sanction for contempt.” Purpura v. Purpura, 1993-NMCA-001, ¶ 6, 115 N.M. 80, 847 P.2d 314; see N.M. Const. art. VI, § 13. The contempt power is necessary to allow courts “to regulate their docket, promote judicial efficiency, and deter frivolous filings,” and “[i]t has long been recognized that a court must be able to command the obedience of litigants and their attorneys if it is to perform its judicial functions.” State ex rel. N. M. State Highway & Transp. Dep’t v. Baca, 1995-NMSC-033, ¶ 11, 120 N.M. 1, 896 P.2d 1148 (internal quotation marks and citation omitted). Although this power is a broad one, our Supreme Court has cautioned that “a court should invoke its inherent powers spar-ingly and with circumspection.” Id. ¶ 25.{12} “Contempts procedurally are either civil or criminal in nature [but] the line of demarcation between the two is some-what hazy.” State ex rel. Bliss v. Greenwood, 1957-NMSC-071, ¶ 6, 63 N.M. 156, 315 P.2d 223. Generally, the type of contempt at issue depends on the purpose behind the contempt determination. “Where the primary purpose is to preserve the court’s authority and to punish for disobedience of its orders, the contempt is criminal. Where the primary purpose is to provide a remedy for an injured suitor and to coerce compliance with an order, the contempt is civil.” Id.; see Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 441 (1911) (“It is not the fact of punishment, but rather its character and purpose, that often serve to distinguish between the two classes of cases.”). Here, the district court awarded damages to compensate the Mercer-Smiths for damage done to their chances of rec-onciliation with their daughters. These

compensatory damages fall within the scope of civil contempt.{13} Compensatory damages for civil contempt are “somewhat analogous to a tort judgment for damages caused by wrongful conduct.” Parker v. United States, 153 F.2d 66, 70 (1st Cir. 1946), cited in El Paso Prod. Co. v. PWG P’ship, 1993-NMSC-075, ¶ 30, 116 N.M. 583, 866 P.2d 311. As such, they serve “to make repara-tion to the injured party and restore the parties to the position they would have held had the [court’s order] been obeyed.” Vuitton et Fils S. A. v. Carousel Handbags, 592 F.2d 126, 130 (2d Cir. 1979); Hutto v. Finney, 437 U.S. 678, 691 (1978) (“Civil contempt may also be punished by a re-medial fine, which compensates the party who won the injunction for the effects of his opponent’s noncompliance.”). Dam-ages may include typical tort damages, including lost wages, Meade v. Levett, 671 N.E.2d 1172, 1181 (Ind. Ct. App. 1996); lost profits, Eldim, Inc. v. Mullen, 710 N.E.2d 1054, 1058 (Mass. App. Ct. 1999); emotional distress, In re Reno, 299 B.R. 823, 829 (Bankr. N.D. Tex. 2003); Sebastian v. Texas Dep’t of Corr., 558 F. Supp. 507, 510 (S.D. Tex. 1983); and attorney fees and litigation costs. Baca, 1995-NMSC-033, ¶ 25 (holding that a district court may award attorney fees against the state); Spear v. McDermott, 1996-NMCA-048, ¶ 43, 121 N.M. 609, 916 P.2d 228. But see McBride v. Coleman, 955 F.2d 571, 577 (8th Cir. 1992) (“[C]ivil contempt [is not] an ap-propriate vehicle for awarding damages for emotional distress[.]”). The district court does not have discretion to deny compensatory damages, if established with reasonable certainty. El Paso Prod. Co., 1993-NMSC-075, ¶ 31 (“[O]nce a plaintiff satisfies his burden of proving violation of a court order, proximate cause, and dam-ages, he or she is entitled to judgment for recovery of those damages.”). In apparent recognition of the weight of this authority, CYFD did not argue below and does not argue here that compensatory damages are not available as a remedy for contumacious conduct.{14} “The elements necessary for a find-ing of civil contempt are: (1) knowledge of the court’s order, and (2) an ability to comply.” In re Hooker, 1980-NMSC-109, ¶ 4, 94 N.M. 798, 617 P.2d 1313. Thus, the

1In addition to CYFD, the motion named CYFD employees Rebecca Liggett, Lou Hoeppner, and Carmela Alcon, as well as Jennifer Schmierer, Gay Farley, Guardian ad litem Jane Wells Starke, and Julia and Rachel’s counsel, Rachel Kolman. The allegations against the CYFD employees in their individual capacity, Jennifer Schmierer, Gay Farley, Jane Wells Starke, and Rachel Kolman were later dismissed.



http://www.nmcompcomm.us/Advance Opinionsparty need not have intent to disobey the district court’s order. Seven Rivers Farm, Inc. v. Reynolds, 1973-NMSC-039, ¶ 16, 84 N.M. 789, 508 P.2d 1276 (“[I]ntent is not an essential element of contempt.”). Because knowledge of the district court’s order is a prerequisite to contempt, the district court’s order must not be ambiguous. See Greer v. Johnson, 1971-NMSC-127, ¶ 10, 83 N.M. 334, 491 P.2d 1145 (upholding a finding of contempt where the court’s order was not ambigu-ous); State ex rel. Patton v. Marron, 1917-NMSC-039, ¶ 50, 22 N.M. 632, 167 P. 9 (stating that “[t]he order or decree alleged to have been violated must be definite and certain, and a respondent will not be held in contempt for alleged violation of an order wanting in these essential respects” and that “[t]he charge of contempt cannot be established for failure to comply with uncertain or indefinite orders, judgments, or mandates.” (internal quotation marks and citation omitted)). That being said, the parties subject to an order have an obligation to seek clarification from the district court if they do not understand the court’s order. When parties instead “undert[ake] to make their own deter-mination of what [a] decree mean[s, t]hey act[] at their peril.” McComb v. Jacksonville Paper Co., 336 U.S. 187, 192 (1949). Further, “[i]t does not lie in [the contemnors’] mouths to say that they have an immunity from civil contempt because the plan or scheme which they adopted was not specifically enjoined. Such a rule would give tremendous impetus to [a] program of experimentation with disobe-dience of the law.” Id.{15} “When reviewing a charge of civil contempt, the action of the trial court will not be disturbed absent an abuse of discre-tion.” State ex rel. Udall v. Wimberly, 1994-NMCA-121, ¶ 15, 118 N.M. 627, 884 P.2d 518. Thus, we will reverse a contempt judg-ment where “the ruling is clearly against the logic and effect of the facts and circum-stances of the case[, or] based on a misun-derstanding of the law.” Chavez v. Lovelace Sandia Health Sys., Inc., 2008-NMCA-104, ¶ 25, 144 N.M. 578, 189 P.3d 711 (internal quotation marks and citation omitted). “Even when we review for an abuse of discretion, our review of the application of the law to the facts is conducted de novo.” Id. (alteration, internal quotation marks, and citation omitted). When reviewing whether the district court’s findings are supported by the evidence, we “view[] the evidence in the light most favorable

to the trial court’s decision, resolve[] all conflicts and indulge[] all permissible inferences to uphold the court’s decision, and disregard[] all evidence and inferences to the contrary.” State v. Gonzales, 2001-NMCA-025, ¶ 40, 130 N.M. 341, 24 P.3d 776, overruled on other grounds by State v. Rudy B., 2009-NMCA-104, 147 N.M. 45, 216 P.3d 810. In doing so, we are mindful that, as in all civil cases, “[t]he burden of proof in [civil contempt proceedings] . . . is . . . the preponderance of the evidence.” Greer, 1971-NMSC-127, ¶ 9. In addition, “the credibility of the witnesses and the weight to be given the evidence is for the trier of the facts.” Id.II. DISCUSSION AND ANALYSIS{16} CYFD makes eleven arguments on appeal that we have grouped into three major categories. First, it argues that the district court did not have jurisdiction to continue contempt proceedings after Julia and Rachel had been dismissed from the abuse and neglect proceedings because they had turned eighteen. Second, it argues that its conduct was not contemptuous. Third, it argues that, even if the district court correctly held it in contempt, the district court erred in awarding damages to the Mercer-Smiths. The third category of arguments includes CYFD’s assertions that (1) CYFD’s conduct did not cause any damage to the Mercer-Smiths because, under a law of the case theory, CYFD had no duty to support reconciliation of the family, (2) the district court’s findings of fact on damages are not supported by the evidence, (3) the “unclean hands” doctrine prohibits compensatory damages for the Mercer-Smiths, (4) certain evidence was improperly admitted, (5) the New Mexico Tort Claims Act either precludes or limits the amount of damages that can be awarded, (6) the amount of attorney fees awarded was incorrect, and (7) the district court judge improperly refused to recuse herself from the case. We address these arguments in turn.A. Jurisdiction{17} CYFD first argues that the district court should have abated the contempt pro-ceedings when Julia and Rachel turned eigh-teen and CYFD’s legal custody of them was terminated by operation of law. See NMSA 1978, § 32A-4-24(F) (2009) (“When a child reaches eighteen years of age, all neglect and abuse orders affecting the child then in force automatically terminate except as pro-vided in [NMSA 1978,] Section 32A-4-23.1 [(2009)] . . . and Subsection [C] of [NMSA 1978,] Section 32A-4-25.3 [(2009)]).”

{18} We disagree that the district court lost jurisdiction to continue contempt pro-ceedings when the abuse and neglect pro-ceedings were terminated. In Gonzales v. Surgidev Corp., the New Mexico Supreme Court considered whether the district court had jurisdiction to enter sanctions for discovery abuses after a final judgment had been entered in the underlying matter. 1995-NMSC-047, ¶ 9, 120 N.M. 151, 899 P.2d 594. It concluded that it did, stating that “[a] court retains jurisdiction under its inherent authority to impose sanctions at any time, subject only to constitutional limitations or equitable defenses.” Id. Gon-zales is dispositive of this issue.{19} CYFD also argues that continuing with the contempt proceedings was con-trary to law because those proceedings did not further the purposes of the Children’s Code. See NMSA 1978, §§ 32A-1-1 to -24-5 (1993, as amended through 2013). CYFD maintains that the imposition of the district court’s contempt powers under the Children’s Code necessarily requires that the court conduct children’s court pro-ceedings, and any contempt proceedings thereunder, “in a manner that will further the purposes and policies of [the Children’s Code].” State v. Julia S., 1986-NMCA-039, ¶ 19, 104 N.M. 222, 719 P.2d 449. For sup-port, CYFD directs us to Julia S., in which this Court considered whether the district court could order incarceration of a child as a sanction for a first probation violation under its contempt power. Id. ¶ 18. Stating that “the court is expected to conduct children’s court proceedings in a manner that will further the purposes and policies of [the Children’s Code]” and that “[t]his expectation extends to the imposition of the court’s contempt powers[,]” the Court held that incarceration of the child for the first probation violation was contrary to the Children’s Code because the Children’s Code provided that the child may be incarcerated only after three probation violations. Id. ¶¶ 19, 21-22. The Court also held that the district court’s inherent contempt power was not unreasonably hindered by the statutory limitation in the Children’s Code. Id. ¶ 27.{20} Julia S. is inapposite for two reasons. First, the Julia S. court expressly limited its analysis and holding to “probation viola-tions of [children in need of supervision]” and stated that it “express[ed] no opinion . . . as to the proper limits of the court’s contempt power for an indirect contempt other than a probation violation.” Id. ¶ 28. Second, there the contempt sanction was



http://www.nmcompcomm.us/Advance Opinionsreversed because it was in direct contradic-tion to a provision in the Children’s Code. Id. ¶ 22. Here, there is no express provision in the Children’s Code prohibiting the district court’s award of compensatory contempt damages to the Mercer-Smiths.{21} As to CYFD’s more general argu-ment that the finding of contempt and award of damages exceeded the district court’s authority because they did not further “the care, protection[,] and whole-some mental and physical development” of Julia and Rachel or the preservation of the Mercer-Smith family, this argu-ment misplaces the focus of the inquiry. See § 32A-1-3(A). CYFD would have us focus on whether the contempt order and damages award themselves further the purposes of the Code, but the more appropriate inquiry is whether the district court’s Placement Order did so. So long as the Placement Order was consistent with the Children’s Code, a contempt order enforcing that order is also consistent with it. See § 32A-4-13(B) (stating that the Children’s Court has contempt power). We conclude that the district court had jurisdiction to enter the contempt order and award compensatory damages.B. Contumacious Conduct{22} CYFD next argues that the district court erred in finding its conduct con-tumacious. It makes two contentions. The first hinges on the language of the Placement Order. CYFD contends that the Placement Order was not clear and unambiguous because the language of the order prohibited only “placement” of the girls with the Schmierers and Farleys as licensed foster parents with a contract with CYFD to care for the girls. The second argument is that, even if the Placement Or-der was unambiguous, the district court’s findings as to contempt are not supported by the evidence. We begin with the first argument.{23} CYFD maintains that the Place-ment Order prohibited only “placement” of Julia and Rachel in the Schmierer and Farley homes and CYFD designation of those families as foster parents to Julia and Rachel. CYFD asserts that “place-

ment into foster care is derived from a signed contract between CYFD and the prospective foster family and the payment of money by CYFD to that foster family.” Thus, it argues that it did not disobey the Placement Order because there was never a contract with the Schmierers and Farleys and no foster parent payments were made to them. Further, it contends, it was not clear and unambiguous that the district court intended to prohibit contact between the girls and the Schmierer and Farley families.{24} This argument elevates form over substance. Even if we accept CYFD’s ar-gument that the Placement Order did not prohibit contact between the girls and the two families, CYFD’s position ignores the district court’s findings to the effect that the amount of contact was tantamount to placement in those homes and thus violated the Placement Order.{25} It is clear from the language in the Placement Order and from the district court’s oral ruling that it was concerned about the nature of the relationship between the girls and people who had been their counselors. For instance, in the Placement Order the district court found that Julia was a former client of Jennifer Schmierer and that “Gay Farley . . . rendered counseling or therapy to Rachel . . . within the previous [sixty] months of the proposed placement.” Based on these findings, it also found that the placement of Julia and Rachel with their former counselors created “dual relation-ships” that are forbidden by the code of ethics for counselors and therapists. 16.27.18.18(D) NMAC (06/15/2001). Sec-tion 16.27.18.16(B) NMAC (07/01/2004) of the code of ethics includes within “dual relationships” those involving a “financial or other potentially exploitive relation-ship with the client.”2 At the conclusion of the placement hearing, the district court stated that it was troubled by the proposed placement plan “because of the risk of roles in these types of cases being confused.” It also referenced the “prior relationship” between the girls and their counselors and the counselors’ ethical obligations.

Contrary to CYFD’s argument, we think it is clear from these statements and the dis-trict court’s findings that it was concerned about Jennifer Schmierer and Gay Farley assuming multiple roles in the girls’ lives, not only about where the girls would live and who got paid by CYFD. Given, among other things, email exchanges among CYFD case workers and CYFD counsel discussed further below, we conclude that this intent and limitation inherent in the district court’s order was understood by CYFD also.{26} We next address CYFD’s contention that the district court’s findings are not supported by the evidence. CYFD argues that the district court erred in deeming admitted the Mercer-Smiths’ second and third requests for admission (RFAs) and that, without these admissions, there is insufficient evidence to support the district court’s findings related to contempt. It also specifically challenges fifty-five findings of fact. Any unchallenged findings are bind-ing on appeal. Rule 12-213(A)(4) NMRA (“The argument shall set forth a specific attack on any finding, or such finding shall be deemed conclusive.”). We begin with a discussion of how the second and third requests for admission came to be deemed admitted and review this ruling for an abuse of discretion.{27} After the Mercer-Smiths served their second and third RFAs, CYFD moved for a protective order and to strike the requests or for additional time to respond to the requests. After a hearing, the motion for additional time was granted “pending further hearing in this matter.” A hearing was held on June 13, 2006, but CYFD’s attorney was not present. Following the Mercer-Smiths’ argument in response to CYFD’s motion for a protective order, the district court ordered the requested admis-sions deemed admitted. CYFD moved for reconsideration of this order.{28} At the hearing on the motion for reconsideration, the district court heard from both CYFD and the Mercer-Smiths on whether appropriate notice of the June 13, 2006, hearing was given to CYFD. The Mercer-Smiths presented billing records

2We note that the concept of a “dual relationship” appears in other parts of the Administrative Code relating to psychologists and social workers. For instance, with regard to social workers, 16.63.16.8(G)(3) NMAC (09/01/2014) prohibits social workers from engaging in dual relationships, which “occur when social workers relate to clients in more than one relationship, whether professional, social, or business. Dual or multiple relationships can occur simultaneously or consecutively.” Similarly, “[a] psychologist shall not serve in varied capacities that confuse the role of the psychologist. Such confusion is most likely when the psychologist changes from one role to another and fails to make clear who is the client or patient. The psychologist is responsible for taking appropriate precau-tions to avoid harmful dual relationships[.]” 16.22.2.9(B)(4) NMAC (03/21/2009). 16.22.1.7(A)(16) NMAC (04/11/2012) states that a dual relationship constitutes a conflict of interest for psychologists.



http://www.nmcompcomm.us/Advance Opinionsand telephone call records document-ing their efforts to schedule the June 13, 2006, hearing. CYFD argued that no one at CYFD had received notice of the hear-ing and that it had not been contacted by the Mercer-Smiths about the hearing. The district court confirmed the procedures for mailing hearing notices by its staff. Ul-timately, the district court concluded that “the process and notification requirements [that] the court is obligated to fulfill in this case have been met and that [CYFD] failed to appear for the hearing.” It therefore de-nied the motion for reconsideration and stated that “the court’s ruling will stand.” On appeal, the Mercer-Smiths maintain that notice was provided to CYFD and CYFD avers that it was not. We defer to the district court’s resolution of factual con-flicts. Buckingham v. Ryan, 1998-NMCA-012, ¶ 10, 124 N.M. 498, 953 P.2d 33 (“[W]hen there is a conflict in the testimony, we defer to the trier of fact.”). Given its determination that CYFD received notice but failed to appear, we conclude that the district court did not err in deeming the second and third requests for admission admitted. Morrison v. Wyrsch, 1979-NMSC-093, ¶¶ 13, 15, 93 N.M. 556, 603 P.2d 295 (stating that district courts have discretion to determine whether counsel’s failure to respond to a request for admis-sion is excusable and, if not, to deem the requests admitted); see Rule 1-036 NMRA.{29} After reviewing the admitted RFAs as well as other evidence, we conclude that the district court’s findings are supported by substantial evidence. “Substantial evidence is such relevant evidence that a reasonable mind would find adequate to support a conclusion.” Miller v. Bank of Am., N.A., 2014-NMCA-053, ¶ 11, 326 P.3d 20 (internal quotation marks and citation omitted), cert. granted, 2014-NM-CERT-005, 326 P.3d 1112. Under the substantial evidence standard of review,

the question is not whether sub-stantial evidence exists to support the opposite result, but rather whether such evidence supports the result reached. We will not re-weigh the evidence nor substitute our judgment for that of the fact-finder. We consider the evidence in the light most favorable to the prevailing party and disregard any inferences and evidence to the contrary.

Id. (alterations, internal quotation marks, and citations omitted).{30} In essence, the district court found that CYFD knew that the Placement Order prohibited the two families from being caretakers of Julia and Rachel and that it nevertheless arranged for Julia and Rachel to “spend[] the majority of their waking hours either in school or with the [Schmierers and Farleys].” We examine whether the evidence supports the district court’s findings as to (1) the contact between the girls and the Schmier-ers and Farleys, (2) CYFD’s knowledge of the nature and extent of the contact, (3) the extent of the Ritters’ role and CYFD’s knowledge of that role, and (4) whether CYFD intentionally took direct action contrary to the Placement Order.3

{31} CYFD challenges findings of fact to the effect that Julia and Rachel (1) ate morning and evening meals with the Schmierers and Farleys; (2) were trans-ported to and from school, extracurricular activities, and medical appointments by the Schmierers and Farleys; (3) were taken on vacation by Gay Farley; and (4) were provided with their own bathrooms in the Schmierer and Farley homes. They also challenge findings that Rachel attended church with Gay Farley and received cloth-ing, presents, school supplies, and a cell phone from Gay Farley, that Rachel kept clothing at the Farley home, and that Gay Farley paid for medical expenses for Ra-chel, which payment was later reimbursed by CYFD, and for dance lessons. Simi-larly, they challenge findings that Jennifer Schmierer or the Schmierers paid for, and were reimbursed for, Julia’s medical ex-penses and paid for her cell phone. Finally, they challenged the district court’s findings that the Schmierers and Farleys were “care-takers” for the girls. Many of these findings were in fact admitted by CYFD in the first RFA. Others are supported by admissions from the RFAs that were deemed admit-ted by the district court. Furthermore, the district court’s finding that “[during the time the Ritters were the putative foster parents], the Schmierers and the Farleys performed functions that a foster parent normally would” is unchallenged.{32} CYFD also challenges findings re-lated to whether CYFD knew of the type and degree of contact between Julia and Rachel and the Schmierers and Farleys. These include findings that “the only foster

care services provided by the Ritters that [the CYFD social worker knew of] was ‘a place to sleep[,]’ ” that “CYFD was aware that Gay Farley had daily contact with the Mercer-Smith girls while the Ritters were ‘foster parents[,]’ ” and that “CYFD knew of the nature of the contact Gay Farley had with the Mercer-Smith girls while the Rit-ters were ‘foster parents.’ ” Other findings were that one or both of the Schmierers and one or both of the Farleys had “at-tended most CYFD staffing meetings in-volving [Julia and Rachel] since September 9, 2003” and that “CYFD is aware that Gay Farley has taken the Mercer-Smith girls out of state.” Again, some of these find-ings are supported by CYFD’s admissions on the first RFA. Identical statements in the third RFA that were deemed admitted also support these findings. Thus, they are supported by the evidence.{33} The district court made findings to the effect that the “placement” of the girls with the Ritters was superficial and that the Ritters were not caretakers of Julia and Rachel to the same extent the Schmierers and Farleys were. For instance, the district court found that CYFD policy requires that foster parents be licensed and that, although the Ritters had been licensed as foster parents until August 2003, they were not licensed foster parents during the time that Julia and Rachel were “placed” with them. It also found that the Ritters did not attend CYFD meetings about Julia and Rachel and that CYFD did not visit the Ritter home while Julia and Ra-chel were “placed” there even though its policy is to conduct home visits monthly. It found that “[t]here are no . . . contact notes for the period of time Julia and Rachel . . . were ‘placed’ with the Ritters.” These findings are either unchallenged, admitted by CYFD, or supported by the deemed admissions. Finally, CYFD does not challenge the district court’s finding that the social worker noted in the case notes that “[i]n essence, we were asking the Ritters to provide a place for [Julia and Rachel] to sleep, with minimal oversight required.” Together, these findings support the district court’s further finding that the Ritters “were not [f]oster [p]arents for Julia and Rachel Mercer-Smith between October 5, 2003[] and January 31, 2004[,]” and related findings.{34} Finally, the findings as to CYFD’s knowledge of the level of contact occur-

3Because we have concluded that the district court retained jurisdiction over the contempt proceedings, we do not need to address CYFD’s challenge to the district court’s finding that it had jurisdiction to continue them.



http://www.nmcompcomm.us/Advance Opinionsring between the girls and the two families and its facilitation of the Schmierers’ and Farleys’ (1) daily contact with the girls; (2) participation in meetings concerning the girls; (3) reimbursement for medical expenses; and (4) out-of-state vacations with the girls, among other things, sup-port the district court’s further finding that “CYFD, as an agency, engaged in activity and took direct actions that were in contempt of the [Placement Order].” As to the findings related to whether CYFD intended to contravene the Place-ment Order, the evidence supports these findings as well. CYFD challenges the district court’s findings that “CYFD was only interested in placing Julia . . . with the Schmierers and Rachel . . . with the Farleys[,]” that “CYFD did not want to place [Julia and Rachel] with the Ritters[,]” that a CYFD social worker told the Ritters that she intended the girls to be with the Schmierers and Farleys “as much as pos-sible” while “placed” with them, and that “[t]he designation by CYFD of the Ritters as ‘foster parents’ was done deliberately by CYFD for the purpose of concealing from the [c]ourt . . . that [the Schmierers and Farleys] served the function of being foster parents for [the girls].” Gay Farley testified that immediately after the placement hear-ing at which the district court prohibited placement of the girls with the Schmierers and Farleys, she met with several CYFD personnel, including CYFD counsel, to develop a plan for the girls’ living ar-rangements. On cross-examination, she agreed with the Mercer-Smiths’ counsel that “[the] plan that was agreed to by the participants in that meeting was that the girls would sleep at the Ritters[’] and spend the rest of their time with [the Farleys] and the Schmierers[.]” Consistent with this testimony, a CYFD social worker stated in her notes that she told the Ritters that the girls “would be spending the major-ity of their waking hours either in school or with [the Schmierers and Farleys]. In essence, [CYFD was] asking the Ritters to provide a place for them to sleep, with minimal oversight required” and that she “t[r]ied to assure the Ritters that [CYFD was] asking them to do minimal actual parenting.” CYFD’s case notes indicate that when CYFD decided to implement the semi-independent living plan, CYFD personnel were aware that Rachel’s and Julia’s residence with the Farleys’ daughter might violate the placement order. Indeed, the social worker noted that “[t]he judge may disagree with placement of the girls

with the Browns [the Farleys’ daughter’s family] as foster care due to their relation-ship with the Farleys.” In email exchanges discussing the semi-independent living plan and renting a room with the Browns, CYFD personnel acknowledged that this arrangement could constitute an “end run” around the Placement Order, stat-ing, “If the question is do I think . . . [the district court] will accuse us of trying to back door [it], yes I think that is possible. If the question is whether we should do it anyway, I think the answer is also yes[.]” CYFD personnel also questioned whether it had “an obligation to inform the court of the relationship [between the Browns] and the Farley[]s who were initially denied by the court[.]” In addition to this evidence, the findings related to CYFD’s intent are supported by facts deemed admitted in the third RFA.{35} We need not address the remainder of the challenged findings, as those already discussed are sufficient to support the dis-trict court’s conclusion that CYFD acted in contempt of the Placement Order. We conclude that, viewed in the light most favorable to the district court’s conclusion, the evidence supports the district court’s findings and therefore find no error in its conclusion that CYFD was contumacious.C. Damages{36} CYFD makes seven allegations of error in the district court’s damages award. We address each argument in turn.1. Law of the Case Theory{37} CYFD first argues that the damages award to the Mercer-Smiths was contrary to the law of the case. CYFD’s law of the case argument goes as follows: because “CYFD had absolutely no legal duty or ob-ligation to seek, encourage, or support any reconciliation between the girls and their parents[,]” it could not have breached that duty and, therefore, there could not have been any damage to the Mercer-Smiths as a result of CYFD’s conduct. For support, CYFD relies on the fact that the district court ruled in 2002 and 2003 that Julia and Rachel “[would] not return to their home of origin.”{38} CYFD conflates the concepts of re-unification, meaning that Julia and Rachel would return to live in the Mercer-Smiths’ home, and reconciliation, meaning contact and communication between the girls and their parents in the future. Although the permanency plan for Julia and Rachel was changed from reunification to a planned permanent living arrangement by agree-ment of the parties, and it was clear that

Julia and Rachel would not return to their parents’ home, it is also clear from the record that the district court, several witnesses at the placement hearing, and CYFD itself understood reunification and reconciliation to be two separate ideas. For instance, the district court indicated that reconciliation was still a goal when it ordered the girls to participate in therapy with Janet Mercer-Smith even after the planned permanent living arrangement was instituted. In addition, in question-ing Dr. Charles Glass, a therapist hired by CYFD to work with the family, at the placement hearing, CYFD’s counsel asked about CYFD’s obligation to pursue reuni-fication. Dr. Glass differentiated between reunification and reconciliation, stating that he understood that CYFD was not obligated to try to reunify the family. This distinction having been made, CYFD went on to ask him about reconciliation in families separated because of abuse. On redirect, the Mercer-Smiths’ counsel also distinguished between reunification and reconciliation and Dr. Glass testified as to the potential impact of reconciliation on children. Similarly, CYFD asked Jennifer Schmierer how she would react “if Julia indicated that she wanted to have contact with her parents” and she testified that she ftlinewould “make sure it would happen.” CYFD also asked whether Ms. Schmierer had any conversations with Julia about whether she should have contact with her parents. CYFD also questioned Rachel and Julia about whether they had spoken with Ms. Schmierer or Ms. Farley about hav-ing contact with their parents. Given that reunification with the Mercer-Smiths was not a goal at the time of the hearing, these questions indicate that CYFD and these witnesses understood that reconciliation between the Mercer-Smiths and the girls was different from reunification. Thus, it was not the “law of the case” that reconcili-ation was not a goal for Rachel and Julia.2. Substantial Evidence{39} CYFD next argues that “there was no credible evidence introduced at the placement hearing or the damages trial as to [the] viability of reconciliation be-tween the girls and the [Mercer-Smiths] as of 2003.” It specifically challenges two findings of fact in the district court’s order on damages. After reviewing the evidence in the light most favorable to the district court’s findings and disregarding evidence to the contrary, we conclude that these findings are supported by the record. Miller, 2014-NMCA-053, ¶ 11.



http://www.nmcompcomm.us/Advance Opinions{40} In challenged finding number six, the district court found that “prior to the [district c]ourt’s . . . 2003 . . . ruling on CYFD’s proposed change in placements, there continued to be viable prospects for reconciliation between [the Mercer-Smiths] and their daughters.” Dr. Glass was admitted as an expert in psychology at the placement hearing and also testified later at the damages hearing. At the dam-ages hearing, Dr. Glass testified that as of late 2002, although “[t]here were certainly concerns about whether it was going to be possible or not, [he] believed that the potential was still there for reconciliation [between the Mercer-Smiths and their daughters].” Dr. Glass also signed a letter that was submitted to the district court before the placement hearing and later admitted at the damages hearing stating that he believed “that any possibility of future reconciliation with the girls’ parents would be significantly lessened if they were to reside with [the Schmierers and the Farleys].” This statement implies that at the time of the letter there was a possibility of reconciliation between the girls and their parents. CYFD appears to argue that this evidence is insufficient because it is merely the authors’ belief. But both Dr. Glass and Dr. Ned Siegel, who also signed the letter, were admitted as experts and experts are permitted to express an opinion under Rules 11-702, 703, and 704 NMRA. We conclude that this evidence is sufficient to support the district court’s finding number six that there were “viable prospects for reconciliation” before the 2003 Placement Order.{41} Challenged finding number seven states that “[d]espite th[e] written state-ment [referenced above], CYFD, Julia and Rachel never asserted in responsive pleadings and testimony that prospects for reconciliation . . . had already been irretrievably damaged.” Because the evidence cited in support of this finding includes only the pleadings in response to the Mercer-Smiths’ objection to the place-ment of the girls and to the testimony at the placement hearing, we interpret this finding to be focused only on what CYFD asserted in those pleadings. On appeal, CYFD points to evidence that “Julia and Rachel had repeatedly told their therapists, the expert psychologists, CYFD, and the judge that they had no desire or intention to reunify or reconcile with their parents.”

It maintains that “[a]ll this evidence con-tradicts the [district c]ourt’s [f]inding of [f]act [number seven].” But CYFD does not direct us to any instance in the specific pleadings and testimony referenced in this finding where CYFD or the girls stated that reconciliation was no longer viable. We conclude that this finding is supported by the evidence, although we note that the finding is also very limited in scope.{42} CYFD argues in a few sentences that its conduct was not the cause of any decrease in the possibility of reconcilia-tion and maintains that the district court’s findings and conclusions to the contrary are “erroneous.” It claims that “[t]hese find-ings and conclusion[s] are contradicted by Julia and Rachel.” But under the substantial evidence standard of review, we do not consider evidence contrary to the district court’s findings. Miller, 2014-NMCA-053, ¶ 11. In addition, CYFD does not explain how the district court’s findings are incor-rect. We therefore do not consider this ar-gument any further. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076.3. Unclean Hands4

{43} CYFD argues that the district court abused its discretion when it awarded damages to the Mercer-Smiths because “[t]he doctrine of unclean hands gener-ally prevents a complainant from recov-ering where he or she has been guilty of fraudulent, illegal or inequitable conduct in the matter with relation to which he [or she] seeks relief.” Magnolia Mountain Ltd., P’ship v. Ski Rio Partners, Ltd., 2006-NMCA-027, ¶ 36, 139 N.M. 288, 131 P.3d 675 (alteration in original) (internal quota-tion marks and citation omitted). CYFD argues that the damages award is improper because of the Mercer-Smiths’ “reprehen-sible misconduct” that led to entry of the no-contest plea. The Mercer-Smiths argue that this argument is unavailing because “[i]n most other jurisdictions, the [unclean hands] doctrine is not a defense to a claim for damages.” They cite to several out-of-state cases as support for this proposition. See, e.g., Wilson v. Prentiss, 140 P.3d 288, 293 (Colo. App. 2006) (“The doctrine of unclean hands enables a defendant to raise an equitable defense to defeat equitable remedies, but not remedies at law.”).{44} Several New Mexico domestic relations cases state that “in the context of contempt proceedings, the court has

the power to consider any valid defense,” including equitable defenses. Hopkins v. Hopkins, 1989-NMCA-101, ¶ 18, 109 N.M. 233, 784 P.2d 420; Mask v. Mask, 1980-NMSC-134, ¶ 5, 95 N.M. 229, 620 P.2d 883 (stating that because that “case arose in the context of a contempt proceeding[,] . . . equitable principles [were] applicable”). In Corliss v. Corliss, 1976-NMSC-023, ¶ 3, 89 N.M. 235, 549 P.2d 1070, the Court appeared to distinguish between contempt actions and those for money damages when it stated that the wife in that case brought a “contempt action as opposed to seeking a money judgment for arrearages. This action invoked the equitable powers of the court in which the trial court has discretion. In a suit for a money judgment very little discretion is allowed. The court merely examines the validity of the prior judgment and enters a money judgment.” Id. We have found no New Mexico case expressly addressing whether the unclean hands doctrine is a defense to contempt of court where compensatory money dam-ages are sought.{45} In El Paso Production Co. v. PWG Partnership, however, the New Mexico Supreme Court held that district courts do not have discretion to withhold a dam-ages award for contempt if the plaintiff has proven a violation, causation, and dam-ages. 1993-NMSC-075, ¶ 31, 116 N.M. 583, 866 P.2d 311 (“We hold that once a plaintiff satisfies his burden of proving violation of a court order, proximate cause, and dam-ages, he or she is entitled to judgment for recovery of those damages.”). A lack of discretion in this decision suggests that the equitable defense of unclean hands is not available. But we need not resolve this issue because even if it is, the doctrine does not apply here. “Ordinarily, the wrong which may be invoked to defeat a suit under the clean-hands maxim must have an imme-diate and necessary relation to the equity which the complainant seeks to enforce against the defendant.” Romero v. Bank of the Sw., 2003-NMCA-124, ¶ 38, 135 N.M. 1, 83 P.3d 288 (alteration, internal quota-tion marks, and citation omitted). “What is material is not that plaintiff ’s hands are dirty, but that he dirtied them in acquir-ing the right he now asserts[.]” Mechem v. City of Santa Fe, 1981-NMSC-104, ¶ 10, 96 N.M. 668, 634 P.2d 690. For instance, in Romero, this Court affirmed the denial of the unclean hands defense where the

4Although CYFD references estoppel in its brief in chief, it makes no substantive argument based on estoppel and expressly stated in the proceedings below that it withdrew its estoppel argument. We therefore do not address CYFD’s argument based on estoppel.



http://www.nmcompcomm.us/Advance Opinions“unclean” conduct complained of was unrelated to the transaction for which the plaintiff sought restitution. 2003-NMCA-124, ¶ 38. Here, the Mercer-Smiths sought to have the district court’s Placement Order enforced. The conduct of which CYFD complains did not occur during the placement or contempt proceedings and did not relate to the Mercer-Smiths’ right to have the Placement Order followed. We conclude that the district court did not err in denying CYFD’s assertion that the unclean hands doctrine precludes the contempt damages award.4. Evidentiary Rulings {46} CYFD argues that the district court erred in three evidentiary rulings. “We review the admission of evidence for abuse of discretion.” Couch v. Astec Indus., Inc., 2002-NMCA-084, ¶ 8, 132 N.M. 631, 53 P.3d 398. First, it maintains that the dis-trict court wrongly precluded admission of the stipulated judgment in which the Mercer-Smiths entered pleas of no contest. We discern no error in the district court’s ruling because Rule 11-410(A)(2) NMRA prohibits the admission of a nolo conten-dere plea against the one who made it as proof of guilt. In an argument similar to its “unclean hands” argument, CYFD argues that it “would have utilized [the evidence of the nolo pleas] to show based on those admissions, that the Mercer-Smiths were not entitled to damages.” Such use is clearly prohibited by Rule 11-410(A)(2). See Kip-nis v. Jusbasche, 2015-NMCA- ___, ¶ 15, ___ P.3d ___ (No. 33,821, Apr. 2, 2015) (stating that the rule prohibits admission of evidence of nolo pleas when offered to prove guilt).{47} Second, CYFD argues that the dis-trict court erred when it denied admission of the transcript of a safehouse interview with Julia. Despite CYFD’s arguments that the transcript was admissible because it was either a “business record” under Rule 11-803(6) NMRA or a prior consis-tent statement under Rule 11-801(D)(1) NMRA, the district court ruled that the transcript was inadmissible hearsay. On appeal, CYFD argues only that the inter-view “was relevant and admissible as [a] prior consistent statement[].” It does not make a substantive argument as to why admission of a prior consistent statement was necessary or why the district court’s ruling was incorrect. “We will not review unclear arguments, or guess at what [a party’s] arguments might be.” Headley, 2005-NMCA-045, ¶ 15.{48} Third, CYFD argues that the district

court erred in admitting and consider-ing the testimony by economist Stan Smith and that “[his] entire testimony . . . should be stricken as it fails to meet the admissibility standards pursuant to State v. Alberico [, 1993-NMSC-047], 116 N.M. 156, 861 P.2d 192 . . . and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 . . . (1993).” It also argues that Smith’s testimony was “not . . . sound as his opinions were based on self-reporting impairment assessments . . . by the Mer-cer-Smith[s], as well [as] upon blatantly false assumptions that Julia and Rachel . . . would provide household services and guidance and counseling to [the Mercer-Smiths].” {49} Generally, “it is not improper for the trial court to permit an economist to testify regarding his or her opinion concerning the economic value of a plaintiff ’s loss of enjoyment of life.” Sena v. N. M. State Police, 1995-NMCA-003, ¶ 29, 119 N.M. 471, 892 P.2d 604. As to CYFD’s argument regarding the proper standard for admission of testimony by an economic expert, we note that CYFD conceded in the district court that the Alberico/Daubert standard did not apply to expert testimony by an economist that is based on experience and training. See State v. Torres, 1999-NMSC-010, ¶ 43, 127 N.M. 20, 976 P.2d 20 (concluding that “ap-plication of the Daubert factors is unwar-ranted in cases where expert testimony is based solely upon experience or training.” (internal quotation marks and citation omitted)). We agree that the district court did not err in not applying the Alberico/Daubert standard for scientific reliability of the economist’s testimony. See Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1245-46 (10th Cir. 2000) (holding that the district court did not err in admitting testimony by Stan Smith even though it did not per-form a Daubert analysis); Gurule v. Ford Motor Co., No. 29,296, mem. op., 2011 WL 2071701, ¶ 8 (N.M. Ct. App. Feb. 17, 2011) (non-precedential) (holding that testimony by an economist on hedonic damages was not subject to the “Alberico standard of scientific reliability” (internal quotation marks and citation omitted)).{50} Instead, CYFD argued in the district court that the main question before the district court was whether “th[e] evidence [presented by Smith would] be of assis-tance to . . . the trier of fact.” This argument rests on CYFD’s contention that Smith’s testimony was essentially speculative be-cause it was based on the Mercer-Smiths’

own estimates of their loss of enjoyment and assumptions about what might have happened in the relationship between the girls and their parents in the future. As the district court observed, however, the basis of Smith’s opinions provided rich fodder for cross-examination. Simply because Smith’s calculations were based on self-reports by the Mercer-Smiths does not render them inadmissible here.{51} To the extent CYFD argues that Smith’s testimony impermissibly intruded on the realm of the factfinder, we disagree that Smith’s testimony “crosse[d] the line between the permissible and impermis-sible [by] attempt[ing] to define the legal parameters within which the [factfinder] must exercise its fact-finding function.” Smith, 214 F.3d at 1246 (internal quota-tion marks and citation omitted). Smith testified in some detail about his model for calculating the value of a loss of enjoyment of life and loss of services, the assumptions he employed, the inputs he received from the Mercer-Smiths, and the studies on which the model was based. He testified that the report he provided included sev-eral calculations intended as a guide for the district court but did not offer an opinion as to the value the district court should adopt. Furthermore, the district court did not adopt any of the damages figures from Smith’s report. The report provided estimates of the damages based on the Mercer-Smiths’ report of their percentage of loss of enjoyment as well as estimates based on a percentage of half that amount. The district court’s award was less than the lower estimate from Smith’s report and did not include any damages related to loss of services by Julia and Rachel. We discern no error in admission of this testimony.5. Tort Claims Act{52} CYFD next argues that the Mercer-Smiths’ claim for damages is akin to a tort claim and that it is “not actionable pursuant to the New Mexico Tort Claims Act [(NMTCA)] as there is no waiver of immunity.” It also argues that, if this Court concludes that sovereign immunity does not preclude damages, the damages should be limited to the statutory cap in the NMTCA. Neither of these arguments is availing.{53} The district court’s contempt power derives from the judicial branch’s inher-ent power to compel compliance with its orders. Greenwood, 1957-NMSC-071, ¶ 17 (“[T]he power to punish for contempt is inherent in the courts and its exercise is the exercise of the highest form of judicial



http://www.nmcompcomm.us/Advance Opinionspower.”). “The real basis of this power is to be found in the doctrine of separation of powers as provided for in the Organic Act and later in the New Mexico Constitu-tion.” Id. Such power is not absolute and may be circumscribed by the legislature to a limited extent. Id. ¶ 18. Thus, although “the [L]egislature may provide rules of procedure which are reasonable regula-tions of the contempt power it may not, either by enacting procedural rules or by limiting the penalty unduly, substantially impair or destroy the implied power of the court to punish for contempt.” Id. When the legislature acts to regulate the court’s contempt power, we examine “the reason-ableness of the legislative regulation.” Id. ¶ 19. Ultimately, “[t]he statutory regulation must preserve to the court sufficient power to protect itself from indignities and to en-able it effectively to administer its judicial functions.” Id.{54} Common law sovereign immu-nity was abolished by the New Mexico Supreme Court in 1975. Hicks v. State, 1975-NMSC-056, ¶ 9, 88 N.M. 588, 544 P.2d 1153 (“Common law sovereign im-munity may no longer be interposed as a defense by the [s]tate, or any of its political subdivisions, in tort actions.”). Later cases clarified that the holding in Hicks “gener-ally abolished the common law doctrine of sovereign immunity in all its ramifications, whether in tort or contract or otherwise.” Torrance Cnty. Mental Health Program, Inc. v. N. M. Health & Env’t Dep’t, 1992-NMSC-026, ¶ 14, 113 N.M. 593, 830 P.2d 145. In response, the Legislature passed the NMTCA, which “grants all govern-ment entities and their employees general immunity from actions in tort, but [also] waives that immunity in certain specified circumstances.” Upton v. Clovis Mun. Sch. Dist., 2006-NMSC-040, ¶ 8, 140 N.M. 205, 141 P.3d 1259; see NMSA 1978, §§ 41-4-1 to -30 (1976, as amended through 2013). CYFD argues that the sovereign immunity granted to state agencies by the NMTCA immunizes it from being held in contempt of court.{55} There are two reasons why this argument fails. First, the plain language of the NMTCA “grant[s] immunity from liability for any tort” and nothing in the NMTCA addresses immunity from con-tempt of court. Section 41-4-4(A) (em-phasis added). To the extent that CYFD argues that the NMTCA applies because the damages here “are in the nature of a tort claim,” we are unpersuaded. Simply because contempt compensatory damages

are similar to tort damages does not mean they are governed by the NMTCA. Sec-ond, accepting CYFD’s argument would mean that the Legislature effectively “de-stroyed” the district court’s ability to find state agencies in contempt and provide a remedy therefor, a clear and improper infringement on the inherent power of the judicial branch. See Greenwood, 1957-NMSC-071, ¶ 18. For these reasons, we reject CYFD’s assertion that it is immune from the district court’s contempt power under the NMTCA. See generally State ex rel. Taylor v. Johnson, 1998-NMSC-015, ¶ 62, 125 N.M. 343, 961 P.2d 768 (“It is clear this Court has authority to implement the full extent of contempt sanctions against executive branch members, including fines and imprisonment.”); Baca, 1995-NMSC-033, ¶¶ 22-23 (commenting that attorney fee awards have a compensatory aspect and stating that a court may award attorney fees against the state for contempt).{56} CYFD makes a cursory argument that, even if it is not immune from li-ability under the NMTCA, any liability “must be limited to the statutory caps for a single occurrence under the [NM]TCA.” We disagree. As presently configured, the NMTCA does not govern the district court’s power to hold the State in contempt in any way, including limiting the amount of damages that might be awarded.6. Attorney Fees{57} CYFD argues that the attorney fee award “should be substantially reduced, as the attorney fees and costs submitted by [the Mercer-Smiths] were excessive, dupli-cative, incomplete, not reasonable[,] and many costs were not allowable pursuant to Rule 1-054 [NMRA].” It makes several arguments on this issue. First, it argues that an award of attorney fees against the state is improper except where the litiga-tion was “frivolous or vexatious.” It cites to Baca, 1995-NMSC-033, ¶ 12, for this proposition. But CYFD has simply cherry-picked this favorable phrase from the Baca opinion. In the same sentence quoted by CYFD, the Baca Court stated that attorney fees are appropriate “to vindicate [the court’s] judicial authority.” Id. In addition, the Baca Court adopted the rationale in Chambers v. NASCO, Inc., 501 U.S. 32, 45-46 (1991), in which the U.S. Supreme Court stated that courts have “the power to award attorney[] fees as a sanction for bad faith or vexatious litigation or for defiance of a court order.” Baca, 1995-NMSC-033, ¶ 12 (emphasis added). Reading these cases in their entirety, it is clear that attorney

fees against the state are permissible when the state defies a court order, not just for frivolous or vexatious claims.{58} Second, CYFD argues that the dis-trict court should have disallowed attorney fees incurred after entry of the contempt order. CYFD points to El Paso Production Co. for the proposition that only attorney fees related to prosecution of a contempt order may be awarded. It apparently finds this rule in the Court’s statement that, after finding contempt, “[t]he court . . . may award attorney[] fees incurred in obtaining the order of contempt.” 1993-NMSC-075, ¶ 31. But this reading of El Paso Production Co. ignores the Court’s previous statement that “once a plaintiff satisfies his burden of proving violation of a court order, proximate cause, and damages, he or she is entitled to judgment for recovery of those damages.” Id. (emphasis added). Thus, proving damages is part and parcel of a contempt proceeding. Furthermore, there is nothing talismanic about the entry of a contempt order that cuts off damages re-lated to the contempt incurred after entry of the order. In Spear, this Court held that a compensatory award of $25,000 was not an abuse of discretion where the funds were earmarked to pay for anticipated future litigation made necessary by the contempt. 1996-NMCA-048, ¶ 44; see In re Hooker, 1980-NMSC-109, ¶ 1, 94 N.M. 798, 617 P.2d 1313 (affirming a compensatory con-tempt award for attorney fees, including fees incurred subsequent to entry of the contempt order).{59} Third, CYFD argues that the district court erroneously awarded attorney fees and costs associated with defense of the abuse and neglect petition. As support, it directs us to an affidavit submitted by its fee expert and presented to the district court which stated that a portion of the fees requested were related to the abuse and neglect petition. But the Mercer-Smiths presented their own affidavits denying that the fee request included any fees un-related to the contempt proceedings. “[W]hen there is a conflict in the testimony, we defer to the trier of fact.” Buckingham, 1998-NMCA-012, ¶ 10. Given that there is evidence supporting the district court’s finding that the attorney fees requested were incurred in “investigating and pros-ecuting the contempt proceedings,” we see no abuse of discretion in this regard.{60} Finally, CYFD makes a generalized attack on the attorney fee award by citing to its pleadings below, which it asserts alerted the district court to “example after



http://www.nmcompcomm.us/Advance Opinionsexample” of unallowable costs. Absent spe-cific allegations and citations, we decline CYFD’s invitation to search the record for errors in the district court’s attorney fee award.5 We conclude that the district court did not abuse its discretion in the award of attorney fees to the Mercer-Smiths.7. Peremptory Excusal{61} On January 4, 2010, the present matter was reassigned to Judge Michael Vigil as part of a mass reassignment of cases by the chief judge under Rule LR1-203(A) NMRA. On January 12, 2010, Judge Barbara Vigil, who had overseen the case since 2001, entered an order on her own motion reassigning the case back to herself. On appeal, CYFD argues that the district court erred in denying CYFD’s mo-tion to reassign the case to another judge, or for leave to file a peremptory excusal. As we understand it, CYFD’s argument boils down to its assertion that the January 12, 2010, order reassigning the case to Judge

Barbara Vigil was void because it was contrary to LR1-203(A) and Rule 1-088.1 NMRA, and that the order is an indication that Judge Vigil “actively sought to retain jurisdiction over the case” because she was inappropriately “embroiled” in the proceeding.{62} We need not address these argu-ments, however, because the order de-nying CYFD’s motion states that “[t]his matter was inadvertently administratively reassigned from Judge Barbara J. Vigil to Judge Michael E. Vigil as part of a mass reassignment” and that “[b]ecause the administrative reassignment was merely an administrative error, the transfer is rendered a nullity and the case shall re-main assigned to Judge Barbara Vigil.” The order further states that “Judge Barbara Vigil’s continued assignment to the matter is not prejudicial to any party.” The order was signed by Judge Barbara Vigil, Judge Michael Vigil, and Judge Stephen Pfeffer,

who was the chief judge at the time. Given the concurrence of three judges that the reassignment was an administrative over-sight, we perceive no error in the denial of CYFD’s motion.III. CONCLUSION{63} For the foregoing reasons, we af-firm the district court’s contempt order and award of damages. Consistent with the reasoning behind the district court’s award of attorney fees, we conclude that the Mercer-Smiths are entitled to attorney fees on appeal. We therefore remand to the district court for calculation of reasonable attorney fees.{64} IT IS SO ORDERED.

MICHAEL D. BUSTAMANTE, Judge

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

5CYFD does specify one cost: a charge of $24,225 for a psychiatrist who did not testify at trial. Other than asserting that this charge is not allowable, it makes no argument as to why such a charge is inappropriate in an award for contempt compensatory damages. We therefore do not address this issue. Headley, 2005-NMCA-045, ¶ 15 (“We will not review unclear arguments, or guess at what [a party’s] arguments might be.”).



Helping Families and Children

Allison P. Pieroni Attorney at Law

Pieroni Family Law, L.L.C.

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or 505-797-6086.

Thank You to

The Sommer, Udall & Sutin Law Firm

for its Generous Support of the Civil Legal Clinic!The First Judicial District Court Access to Justice Committee and the Volunteer Attorney Program would like to thank the Sommer, Udall & Sutin Law Firm, its attorneys, and staff for volunteering their time and expertise at its November 6, 2015 Civil Legal Clinic in Santa Fe. The 2016 Santa Fe Civil Legal Clinics will take place the first Friday of every other month at the First Judicial District Courthouse in the 1st Floor Jury Room from 10 a.m. until 1 p.m., starting on February 5, 2016. Twenty-two individuals received assistance at the November clinic thanks to the dedication of eight attorneys and a staff member from the Sommer, Udall & Sutin Law Firm. Thank you:

Cullen HallmarkJoseph WalshJack HardwickKimball UdallLisa Adelman

Jacqueline BergMark NelsonJeremy JonesEric Sommer

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

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Visit the State Bar of New Mexico’s website

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

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ClassifiedPositions

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

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

New Mexico Administrative Hearings Office— Chief Hearing OfficerThe New Mexico Chief Hearing Officer Selection Committee is currently solicit-ing applications for the position of Chief Hearing Officer (CHO). This is a full-time, exempt position, appointed for a six-year term beginning on or after 1/1/16. The salary range is from $25.75 - $63.73 hourly, $53,558 - $132,558 annually, depending upon experi-ence and qualifications. The CHO manages the Administrative Hearings Office (AHO), which holds hearings on taxation matters pertinent to the Taxation and Revenue Department. The CHO is responsible for supervising 16 full time employees in four offices across the state, preparing an annual budget, conducting hearings in the CHO’s capacity as a hearing officer, managing the efficient processing of a large AHO caseload and testifying before the New Mexico State Legislature, as needed. Minimum qualifica-tions include: licensed to practice law in New Mexico or another state and knowledge of the tax law and substantial experience mak-ing the record in an administrative hearing suitable for judicial review. Preferred skills include: at least three years combined experi-ence with tax law and making the record in administrative hearings suitable for judicial review, experience with motor vehicle law, budgeting, general business matters, legal case management databases, and personnel management. To apply, please submit: 1) let-ter of interest; 2) résumé detailing applicant’s conformance to the minimum qualifications and preferred skills for this position as listed above; 3) evidence of being a licensed at-torney in New Mexico or another state and evidence of being in good standing in each state in which licensed to practice law; and 4) names and contact information for three professional references, by December 29, 2015 to: [email protected]. The detailed job posting and additional informa-tion regarding this position can be viewed at http://nmdfa.state.nm.us/chief-hearing-officer-selection-committee.aspx.

Amazing Bilingual Advocate Needed! Immigration law firm seeks full time associ-ate attorney with passion and commitment to advocate for immigrants in all areas of relief. Inclusive, supportive office culture that welcomes all to apply. Position available immediately. Must be fluent in Spanish. NM License preferred. No experience necessary. Salary DOE, full benefits offered. E-mail let-ter of interest, resume, and writing sample to Rebecca Kitson at [email protected]. We will not contact you unless you are being considered for the position and incomplete applications will be immediately discarded.

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

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

Santa Fe County – Assistant County AttorneySanta Fe County is seeking qualified indi-viduals to join its team of attorneys. The successful candidate’s practice will focus in areas assigned based upon experience, need, and interest. The ideal candidates are those with strong analytical, research, com-munication, and interpersonal skills, who enjoy working hard in a collaborative, fast-paced environment on diverse and topical issues that directly impact the community in which they live or work. Salary range is from $27.0817 to $40.6226 per hour, depending upon qualifications and budget availability. Applicant must be licensed to practice law in the State of New Mexico and in the New Mexico federal courts and have a minimum of three (3) years of experience practicing law. This position is open until filled, so interested individuals should apply as soon as possible. Individuals interested in joining our team must apply through Santa Fe County’s web-site, at http://www.santafecountynm.gov/job_opportunities.

Associate Attorney Hatcher Law Group, P.A. seeks a new as-sociate attorney with two-plus years of legal experience for our downtown Santa Fe of-fice. We are looking for someone not only ready for the challenge of a heavy caseload, but also motivated to excel at the practice of law in a litigation-focused practice. Hatcher Law Group defends individuals, state and local governments and institutional clients in the areas of insurance defense, coverage, workers compensation, employment and civil rights. We offer a great work environment, competitive salary and opportunities for future growth. Send your cover letter, resume and a writing sample via email to [email protected].




http://nmdfa.state.nm.us/chief-hearing-officer-selection-committee.aspx





http://www.santafecountynm.gov/


Office of the State Engineer/Interstate Stream Commission (OSE/ISC) State of New MexicoThe Litigation & Adjudication Program seeks to hire a New Mexico licensed attorney: a Lawyer Advanced to work in the Northern New Mexico Adjudication Bureau to rep-resent the OSE/ISC in federal & state court litigation & at administrative hearings, water right adjudications and natural resources issues. The positions are located in Santa Fe. Qualifications: Juris Doctorate from an ac-credited law school; 5 years experience in the practice of law; member of the New Mexico State Bar. Job ID #: Northern New Mexico At-torney Advanced (OSE#64957) #2015-05820. Must apply on line at http://www.spo.state.nm.us/ from 12/16/2015 to 12/30/2015. The OSE/ISC is an Equal Opportunity Employer

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

Immigration AttorneyCatholic Charities of Southern New Mexico is seeking an Immigration Attorney. The at-torney will supervise the cases of legal staff and will also maintain their own caseload. Candidate must have graduated from an accredited law school and be licensed to practice law. Fluency in written and oral English and Spanish is required. Prior experi-ence in immigration law strongly preferred. Competitive salary including benefits. Cover letter detailing qualifications, CV and three professional references should be sent to: Catholic Charities of Southern New Mexico, Immigration Attorney Search, 2215 South Main Street, Suite B, Las Cruces, New Mexico 88005 or [email protected].

Part Time and Full Time AttorneysAre you interested in a professional position where you can enjoy a good standard of liv-ing with a balanced quality of Life? Are you interested in really making a difference in your clients' lives? If so read on. Lightning Legal Group focuses on domestic relations, and the legal issues associated with family law including divorce, legal separations, an-nulment, paternity, parents' rights, adoptions, guardianships, custody issues, domestic vio-lence, child support, spousal support, quali-fied domestic relations orders, grandparents' rights, estate planning and probate. In es-sence, Lightning Legal covers the services that are important in peoples' lives- from cradle to grave, and beyond... Our mission is to timely and effectively respond to legal is-sues in a proactive and effective manner. Our comprehensive approach to legal issues, and dedication to client empowerment mean we creatively consider past, present and future issues to seek results designed to minimize or resolve legal problems. This means creative, intuitive application of the law with compas-sionate representation. In serving our clients we also provide special attention to the rela-tionships within the family, cultural milieu, and what is in the best interest of our clients within the larger context of the life they are leading and the life they wish to pursue. We are in the process of expanding and in need of Part Time and Full Time Attorneys licensed and in good standing in New Mexico with experience in Family Law, Civil Litigation, and/or Probate. Successful applicants must have demonstrated court room, client rela-tions, and computer skills. We offer excellent compensation and a great team working environment with flexible hours. At present, we are comprised of 8 attorneys and 6 support staff with offices in Albuquerque and Santa Fe. Please feel welcome to visit our website at lightninglegal.biz to find out more about us. Please send cover letter, resume, and refer-ences to [email protected]. All inquiries are maintained as confidential. Thank you for your interest.

Tribal Court Judge – Housing Authority Dispute Division (HADD) The Pueblo of Cochiti is seeking applica-tions for a Tribal Court Judge for the 2016-2017 Term. The position is approved by the Tribal Council. The Pueblo of Cochiti Tribal Court – Housing Authority Dispute Division (HADD), has jurisdiction over all housing cases included in the HADD Ordinance. Minimum Qualif ications: High School Graduate with strong preference to a licensed attorney who has practiced and applied Na-tive American Indian Law. Other Relevant Qualifications: Experience in Federal Indian Law; General Knowledge of Indian Tribes, including the Pueblo of Cochiti; Knowledge of courts that administer justice; including criminal and civil court systems; Ability to hear court cases and render oral and written decisions based on interpretation of law and findings of fact; Ability to interpret laws, including the Cochiti Pueblo Tribal Court- Housing Authority Dispute Division Code and other relevant law; Successful completion of a background check. Preference is given to Cochiti Tribal Members. Annual Salary will be based on experience. Send a Resume and Letter of Interest to: Pueblo of Cochiti Tribal Courts, PO Box 70, Cochiti Pueblo, NM 87072 or by fax at (505)-465-3168. Clos-ing Date: January 23, 2016, or until filled. For further information, contact the Cochiti Pueblo Tribal Court Office at (505)465-3106 or the Pueblo de Cochiti Housing Authority Office at (505)465-0264.

New Mexico Public Regulation CommissionGeneral CounselThe New Mexico Public Regulation Commis-sion is accepting applications for the position of General Counsel. The position advises the Commission on regulatory matters, includ-ing rulemakings and adjudicatory proceed-ings involving the regulation of electric and gas utilities, telecommunications providers, and motor carriers; represents the Commis-sion in federal and state trial and appellate courts. Manages and oversees day to day operations of General Counsel Division in-cluding case management and assignments. Involves day to day interaction with Elected Officials, Hearing Examiners and other Division Directors. The position requires extensive knowledge of administrative law practice and procedures and of substantive law in the areas regulated by the Commission; ability to draft clear, concise legal documents; ability to prioritize within a heavy workload environment. Minimum qualifications: JD from an accredited law school; ten years of experience in the practice of law, including at least four years of administrative or regu-latory law practice and three years of staff supervision; admission to the New Mexico Bar or commitment to taking and passing Bar Exam within six months of hire. Background in public utilities, telecommunications, transportation, engineering, economics, accounting, litigation, or appellate practice preferred. Salary: $56,000- $90,000 per year (plus benefits). Salary based on qualifications and experience. This is a GOVEX “at will” po-sition. The State of NM is an EOE Employer. Apply: Submit letter of interest, résumé, writ-ing sample and three references to: Human Resources, Attention: Rene Kepler, [email protected] or NMPRC P.O. Box 1269, Santa Fe, NM 87504-1269. Applications must be postmarked by January 4, 2016.

http://www.spo.state






Services

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

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

Full-Charge BookkeeperFull-Charge Bookkeeper, [email protected]

Firm AdministratorNordhaus Law Firm seeks applications for the position of Firm Administrator, working in its Albuquerque office. The Firm also has of-fices in Spokane, Washington and Washing-ton DC. The Firm consists of 5 attorneys and support staff. The Administrator works pri-marily under the direction of the Firm’s Man-aging Partner, and serves as office manager in the Albuquerque office. The Administrator is responsible for the administrative operations of all three offices, including supervising non-attorney personnel, monitoring the Firm's finances, preparing special financial reports and projections as needed, managing HR systems, managing the physical facilities of the Firm, and overseeing or executing special projects as assigned. The preferable candidate will have 5+ years of relevant experience in law firm administration, whether as a Firm Administrator, Office Manager, or other position and will have a strong background in project management, broad knowledge of computer systems and other operating and information systems (as used in a law firm environment), and experience or training relating to personnel and human resource management, business operations, and fi-nances and accounting. This individual will be adept at multi-tasking and setting priori-ties. The individual in this position must have excellent organizational and communica-tion skills. Native American candidates are encouraged to apply. Nordhaus Law Firm is an Equal Opportunity Employer. Contact Blanche L. Fierro at: [email protected]. No phone calls please.

Paralegal for Plaintiff’s Injury FirmMinimum 3 years’ experience in Plaintiff’s injury law. Litigation experience necessary. Fast-paced environment with a high case load. We work as a team, and are the best team in Albuquerque. Outstanding pay, perks, and benefits. Come join us. To see the position description and apply, please type into your browser: ParnallLawJobs.com

Legal SecretaryLEGAL SECRETARY for insurance defense downtown law firm, 5+ years experience. Strong organizational skills and attention to detail necessary. Full time/salary DOE. Great benefits. Fax resume to Human Resources at 505/764-6099 or mail to Civerolo, Gralow, Hill & Curtis, P.A., P.O. Box 887, Albuquer-que NM 87103.

Legal Assistant WantedTax lawyer/CPA with 40 years experience seeking legal assistant/office manager. Po-tential growth opportunity and supervisory role. Require maturity, diligence, patience, commitment to excellence, good people and organizational skills, very good writing and language skills, exceptional attention to detail and diligent monitoring of files and deadlines. Minimal litigation practice in-volved. Prefer familiarity with bookkeeping and Excel. Please send resume to Anthony B. Jeffries at [email protected] or to Anthony B. Jeffries, J.D., C.P.A., 520 Los Ran-chos Rd. NW Ofc, Los Ranchos, NM 87107.

Help and support are only a phone call away.Confidential assistance – 24 hours every day.

Judges call 888-502-1289Lawyers and law students call 505-228-1948 or 800-860-4914

www.nmbar.org

NEW MEXICO LAWYERS and JUDGES ASSISTANCE PROGRAM (JLAP)

Through JLAP, I’ve been given the freedom to become the person that I’ve always wanted to be. This program saved my life and my family. –SM

Thanks to JLAP, I am happier, healthier and stronger than I have ever been in my entire life! –KA

Free, confidential assistance to help identify and address problems with alcohol, drugs, depression, and other mental health issues.

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





Member Benefits Resource Guide

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

• Attorney Resource Helpline

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

Mentorship Program

• Center for Legal Education

• Digital Print Center• eNews• Ethics Assistance• Fee Arbitration Program

• Lawyers and Judges Assistance Program

• New Mexico Lawyer• State Bar Center Meeting

Space

TM

Virtual Conferencing. Pure and Simple.

Office Space

620 Roma N.W.620 ROMA N.W., located within two blocks of the three downtown courts. Rent includes utilities (except phones), fax, internet, janito-rial service, copy machine, etc. All of this is included in the rent of $550 per month. Up to three offices are available to choose from and you’ll also have access to five conference rooms, a large waiting area, access to full library, receptionist to greet clients and take calls. Call 243-3751 for appointment to inspect.

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

Searching For Betty Beilman's Will! She lived in Angel Fire and Albuquerque. (580) 458-7828

Miscellaneous

For Lease in the Downtown Abq Area - Historic Hudson HouseOne, Two, or Three attractive office spaces. The downstairs has separate kitchen and bathroom facilities. Rent includes utilities, telephone equipment, access to fax, copier, conference rooms, parking, library and reference materials. There is a potential for referrals and co-counsel opportunities. For more information, call Debra at the offices of Leonard DeLayo, Jr. PC at 505-243-3300.

Santa Fe Professional OfficeLocated in the St Francis Professional Center, share an office suite with two other established attorneys. Large reception area, conference room, kitchenette. Ample park-ing. Call Donna 982-1443.

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



State Bar CenterYour Meeting Destination

Hold your conference, seminar, training, mediation, reception, networking social

or meeting at the State Bar Center.

• Multi-media auditorium

• Board room• Classrooms• Reception area• Ample parking• Free Wi-Fi

For more information, site visits and reservations,

contact 505-797-6000, [email protected], or [email protected].

5121 Masthead NEAlbuquerque, NM 87109

Conveniently located in Journal Center



Wishing you Happy Holidaysand a

Prosperous New Year!

Atkinson & Kelsey, P.A.2155 Louisiana Blvd. NE | Suite No. 2000 | Albuquerque, NM 87110

Local: 505-883-3070 | Toll-Free: 800-640-3070

December 23, 2015 • Volume 54, No. 51 - NMBAR Home• Jan. 4, 2016, 5:30 p.m. First United...

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Transcript of December 23, 2015 • Volume 54, No. 51 - NMBAR Home• Jan. 4, 2016, 5:30 p.m. First United...