April 22, 2015 • Volume 54, No. 162015 Health Law Legislative Update Presented by Morris “Mo”...

Out of the Storm, by Barbara L. Chapman www.chapman-art.com

Inside This Issue

April 22, 2015 • Volume 54, No. 16

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

Indian Law Section: Celebrate Bar Preparation Scholarship Awards ................................................ 4

Public Law Section: Joey Moya Named Public Lawyer of the Year .... 4

Volunteers Needed: YLD Law Day Call-in Program ............................ 6

Juror Appreciation Week Recognition Proclamation ............................................................7

Clerk’s Certificates .................................................13

From the New Mexico Court of Appeals

2015-NMCA-016, No. 32,178: Jones v. Augé, II .................................................16

2015-NMCA-017, No. 32,656: Segura v. Van Dien ...........................................27

2015-NMCA-018, No. 32,119: Nathan E. Boyd Estate v. United States .........29

http://www.chapman-art.com

2 Bar Bulletin - April 22, 2015 - Volume 54, No. 16

CENTER FOR LEGAL EDUCATION

CLE Planner

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

Apri

l 30

May

8M

ay 1

ID Theft Prevention and RemediationPresented by Rebecca Branch, Office of the Attorney General and Mark Medley, ID Theft Resolutions

2015 Spring Elder Law Institute: Developments in Elder Law Rules and Regulations 2015

Thursday, April 30, 2015 • 9-11 a.m. State Bar Center

Friday, May 1, 2015 • 1-4 p.m. State Bar Center

2.0 G

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

This program will provide you with information about current policies and legislation, and offer a practical guide to resolve identity theft through education and remediation.

Co-sponsor: Elder Law SectionStandard Fee: $125Elder Law Section members, government and legal services attorneys, and Paralegal Division members $115Webcast Fee: $135

also available viaLIVE WEBCAST

also available viaLIVE WEBCAST

2.6 G

2015 Health Law Legislative UpdatePresented by Morris “Mo” Chavez and Ryan Harrigan, SaucedoChavez PC

Friday, May 8, 2015State Bar Center

1.0 G

Co-sponsor: Health Law SectionStandard Fee: $50 Health Law Section members: $30

This course provides an overview of the healthcare legislation discussed during the 2015 New Mexico Legislative session. While the speakers will focus on healthcare legislation that passed, they also will discuss certain proposed legislation that did not pass and why it failed. Finally, they will touch on whether Gov. Martinez signed the legislation into law.

http://www.nmbar.org

Bar Bulletin - April 22, 2015 - Volume 54, No. 16 3

Notices ................................................................................................................................................................4Juror Appreciation Week Recognition Proclamation ..........................................................................7Legal Education Calendar .............................................................................................................................8Writs of Certiorari ......................................................................................................................................... 10Court of Appeals Opinions List ................................................................................................................. 12Clerk’s Certificates ......................................................................................................................................... 13Recent Rule-Making Activity ..................................................................................................................... 15Opinions

From the New Mexico Court of Appeals2015-NMCA-016, No. 32,178: Jones v. Augé, II ........................................................................ 16

2015-NMCA-017, No. 32,656: Segura v. Van Dien .................................................................. 27

2015-NMCA-018, No. 32,119: Nathan E. Boyd Estate v. United States ........................... 29

Advertising ...................................................................................................................................................... 33

State Bar Workshops April

22 Legal Resources for the Elderly Workshop 10–11 a.m., Presentation 11:30 a.m.–2:30 p.m., Clinics Chaves County JOY Center, Roswell

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

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

29 Legal Resources for the Elderly Workshop 10–11 a.m., Presentation, No Clinics Chama Senior Center, Chama

29 Legal Resources for the Elderly Workshop Noon–1 p.m., Presentation, No Clinics Tierra Amarilla Senior Center, Tierra Amarilla

MAy

1 Civil Legal Fair 10 a.m.–1 p.m., First Judicial District Court, First Floor Jury Room, Santa Fe

Meetings April

22 Law Practice Management Committee, Noon, State Bar Center

23 Natural Resources, Energy, and Environmental Law Section, Noon, via teleconference

24 Immigration Law Section BOD, Noon, via teleconference

28 Intellectual Property Law Section BOD, Noon, Lewis Roca Rothgerber

30 Alternative Dispute Resolution Committee, Noon, State Bar Center

MAy

1 Elder Law Section BOD, Noon, State Bar Center

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

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

8 Criminal Law Section BOD, Noon, Law Office of Kelley & Boone

Cover Artist: The inspiration for Chapman’s work is derived from the movement initiated by life’s changes and challenges. The use of acrylic paint, chalk and oil pastels allow for the flow of spirit to emerge and unfold. Volunteering with homeless youth reinforces her drive to express the beauty, grace and courage that can be found in each day.

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 Managing Editor D.D. Wolohan 505-797-6039 • [email protected] 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 E-mail: [email protected]. • www.nmbar.org

April 22, 2015, Vol. 54, No. 16

mailto:[email protected]








NoticesProfessionalism TipCourt News

U.S. District Court, District of New MexicoFederal Bar Seminar Join colleagues for a free one-day CLE program “The Second, Best Federal Bar Seminar Ever” (6.0 G) from 8:15 a.m.– 4:45 p.m., May 1, at the Albuquerque Con-vention Center. Topics include “Evidence” and “Preservation of Issues for Appellate Review” in the morning and a choice of civil or criminal law programs in the after-noon. For more information or to register, visit www.nmd.uscourts.gov.

stAte BAr NewsAttorney Support Groups• May 4, 5:30 p.m. First United Methodist Church, 4th

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

• May 11, 5:30 p.m. UNM School of Law, 1117 Stanford

NE, Albuquerque, Room 1119 (The group meets the second Monday of the month.)

• May 18, 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.

Alternative Dispute Resolution CommitteeCLE Series: ‘Mediating in Courts’ Norm Gagne and Susan Barnes Ander-son will present “Mediating in Courts of Limited Jurisdiction—Are You Part of the Solution or Part of the Problem?” (1.0 G) as part of the ADR Committee CLE Series from 12:30–1:30 p.m., April 30, at the State Bar Center (and by teleconference). To register, visit www.nmbar.org. Tele-conference attendees must pre-register by calling 505-797-6020. The ADR Commit-tee will meet prior to the CLE program at noon.

Indian Law SectionCelebrate Bar Preparation Scholarship Awards The Indian Law Section invites its members to celebrate the presentation of its 9th Annual Bar Examination Prepara-tion Scholarships, 6–10 p.m., on Thursday, April 30, at the Indian Pueblo Cultural

Center, 2401 12th St. NW, in Albuquer-que. Join the Board as they celebrate the section’s continued support of a growing community of Indian Law lawyers in New Mexico and one of the section’s most successful initiatives, the Bar Exam Preparation Scholarship. There will be food courtesy of the section, a cash bar, fabulous door prizes and the opportunity to meet and congratulate four outstanding UNM law students who will be receiving scholarships. This event is free for mem-bers and a guest of a member. R.S.V.P. to Evann Kleinschmidt, [email protected], by April 27.

Natural Resources, Energy and Environmental Law SectionMixer at Cowgirl Hall of Fame The Natural Resources, Energy and En-vironmental Law Section invites members to mosey on over to the Cowgirl Hall of Fame in Santa Fe, 319 S. Guadalupe St., for some fun and libations. The festivities will be from 5-7 p.m., Thursday, April 30. First “shot” and the grub are courtesy of the Section; pony up for additional drinks. For commuters, or those wanting to travel from Albuquerque, the Rail Runner depot is within walking distance. R.S.V.P. to Evann Kleinschmidt, [email protected], by April 27.

Public Law SectionMoya Named Public Lawyer of Year The Public Law Section will be honor-ing Joey D. Moya as its 2015 Public Lawyer of the Year at 4 p.m. on May 1 at the Capitol Rotunda in Santa Fe. Moya is the chief clerk of the Supreme Court and the Court’s chief counsel. In these roles, he oversees the operation of the Supreme Court’s com-mittees, boards and commissions. Moya has dedicated his career to the judiciary and is committed to improving access to the courts, having served as a commis-sioner of the New Mexico Commission on Access to Justice since 2003. State Bar President Martha Chicoski, Chief Justice Barbara J. Vigil, Attorney General Hector Balderas and UNM School of Law Dean

David Herring are scheduled to speak. The Othmer Summer Fellowship for a UNM law student to work in a public interest program also will be awarded during the ceremony. The public is invited to attend.

Young Lawyers DivisionStatewide Volunteers Needed for Law Day Call-in Program Volunteers are needed for the Young Lawyers Division Law Day Call-in from 9 a.m.–1 p.m. on Saturday, May 2, at the State Bar Center in Albuquerque. Volunteers are needed in all areas of law, but particularly family law. Breakfast will be provided. To volunteer or for more information, in Albuquerque, contact Sonia Russo at [email protected]. In Roswell, contact Anna Rains, [email protected]. In Las Cruces and Alamogordo, contact Erin Atkins, [email protected]. In Gallup, contact Laura Horton, [email protected].

uNMLaw LibraryHours Through May 9Building & Circulation Monday–Thursday 8 a.m.–10 p.m. Friday 8 a.m.–6 p.m. Saturday 8 a.m.–5 p.m. Sunday Noon–8 p.m.Reference Monday–Friday 9 a.m.–6 p.m. Librarian on call 3–6 p.m. Saturday–Sunday Closed

Mexican American Law Student AssociationFighting for Justice Banquet Join the Mexican American Law Student Association for the 20th Annual Fighting for Justice Banquet honoring the Working Classroom. Angelo Gonzales, Ph.D., will be the keynote speaker. The event will be at 6 p.m., April 25, at San-dia Resort & Casino in Albuquerque. To purchase tickets, visit www.malsa.org or contact MALSA President Dynette Cor-dova, [email protected].

With respect to the courts and other tribunals:

I will be a vigorous and zealous advocate on behalf of my client, but I will remember that excessive zeal may be detrimental to my client’s interests or the proper functioning of our justice system.

http://www.nmd.uscourts.gov





http://www.malsa.org



otHer BArsFederal Bar AssociationCLE Luncheon Event Dean Erwin Chemerinsky will present “An Amazing Time in the Supreme Court” (1.0 G) at the CLE luncheon event spon-sored by the New Mexico Chapter of the Federal Bar Association on April 30 from noon–1:30 p.m. at the La Fonda Hotel in Santa Fe. Chemerinsky is a distinguished professor of law and the Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law. Check-in will begin at 11:30 a.m. and a buff et luncheon begins at noon. Th e presentation follows at 12:30 p.m. Cost: $25 for judges, court staff and law students; $50 for Federal Bar Association members; non-lawyers, $75 for non-members. Credit cards, checks and cash will be accepted at the door. Checks can be sent to New Mexico Chapter of the Federal Bar Association, 112 Edith NE, Albuquerque, NM 87102. Space is limited; register to guarantee a spot. For more information or to register, contact Ron Holmes, [email protected], or Naomi Barnes, [email protected].

New Mexico Criminal Defense Lawyers AssociationIndian Law Seminar in Durango The New Mexico Criminal Defense Lawyers Association is partnering with the Colorado Criminal Defense Bar to host a CLE seminar on May 1 in Durango, Colo., “Criminal Justice Issues In & Around Indian Country” (4.5 G, 1.0 EP). Topics to be covered include federal and state jurisdictional issues, representing pro bono clients in tribal court practically and ethically, and civil issues related to criminal charges on Native land. Visit www.nmcdla.org or call 505-992-0050 to register and to get information on how to reserve discounted hotel rooms early.

New Mexico Trial Lawyers FoundationTort Law Update Th e New Mexico Trial Lawyers Foun-dation presents “34th Annual Update on New Mexico Tort Law” (6.0 G, 1.0 EP), on April 24 in Albuquerque. For more infor-mation or to register, call 505-243-6003 or visit www.nmtla.org.

New Mexico Women’s Bar AssociationHon. Martha Vazquez to Receive Pettijohn Award Th e New Mexico Women’s Bar Associa-tion Henrietta Pettijohn Award Reception honoring Hon. Martha Vazquez will be held from 6–9 p.m., May 7 at the Hotel Andaluz in Albuquerque. Tickets are $45 for WBA members, $60 for non-members, and $25 for students. A sponsorship table for ten is $500. For tickets, contact Amelia Nelson at [email protected]. Th e WBA also is asking for silent auction items for the event. To donate, contact Peggy Graham at [email protected]. All proceeds from the event benefi t the WBA scholarship at the UNM School of Law.

otHer NewsNew Mexico Foundation for Open GovernmentGovernment Transparency CLE Registration is open for the New Mex-ico Foundation for Open Government’s May 1 seminar on public records and open meetings laws (5.0 G, 1.0 EP, pend-ing MCLE approval). Th e program will be held at the Albuquerque Journal Building in Journal Center. For more information, visit http://myemail.constantcontact.com/New-Mexico-Foundation-for-Open-Government-CLE-May-1.html?soid=1103244704435&aid=SLB8YrkY_j0.

New Mexico Lawyers for the ArtsVolunteers Needed for Clinics New Mexico Lawyers for the Arts and WESST seek attorneys who are able to volunteer for a pro bono clinic in Santa Fe from 10 a.m.–2 p.m. on June 6. Volunteers can volunteer for the entire clinic or just a few hours. Lunch will be provided. Clients will be creative professionals or arts orga-nizations. Volunteer attorneys are needed in the following areas: contracts, business law, employment matters, estate planning, intellectual property law. For more infor-mation and to participate, contact Talia Kosh at [email protected].

Rocky Mountain Mineral Law FoundationEnhanced Oil Recovery Institute The State Bar is co-sponsoring the Special Institute on Enhanced Oil Re-covery: Legal Framework for Sustainable

New Mexico Lawyers and Judges

Assistance Program

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

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

Judges888-502-1289

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

Submitannouncementsfor publication in the Bar Bulletin to

[email protected] by noon Monday the week prior to publication.

Members, their employees, and immediate family members

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

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

Contact Shawn Gale, sgale@de� ned.com or 505-814-2355.

Visit www.de� ned.com.

Member Benefi tF e a t u r e d

http://www.de




http://www.nmcdla.org

http://www.nmtla.org



http://myemail.constantcontact.com/




Management of Mature Oil Fields, May 7–8 in San Antonio, Texas, with the Rocky Mountain Mineral Law Foundation. State Bar members may register for this pro-gram at the discounted rate. For a detailed program brochure, online registration and information about discounted hotel rooms at the Westin Riverwalk Hotel, visit www.rmmlf.org. Comprehensive course materials will be provided to all registrants.

Workers’ Compensation Association of New Mexico34th Annual Conference The Workers’ Compensation Asso-ciation of New Mexico will host its 34th Annual Conference “Finding the Hero in You: The Super Men and Wonder Women of Work Comp,” May 13–15 at Isleta Resort and Casino in Albuquerque. The super

hero-themed conference will kick off with the annual fund-raising golf tournament on May 13 at Isleta Eagle. The two-day conference that follows features HR/safety, medical and legal tracks with continuing education credits available for a variety of professionals, including 10.5 G and 1.0 E, (pending MCLE approval). For more information and to register, visit www.wcaofnm.com.

Call-in ProgramLaw Day

MAY 2, 2015

during the YLD’s Law Day Call-in Program.

Saturday, May 2, 9 a.m. to 1 p.m., State Bar CenterIf you are bilingual (English and Spanish), that’s a plus

• Family Law• Landlord/Tenant disputes

• Consumer Law • Personal Injury

• Collections

Because there will be so many callers, you can only provide 5 minutes of guidance and then refer callers to legal service organizations for further assistance.

If you can volunteer in Albuquerque, please contact Sonia Russo at [email protected] or 505-269-0369. In Roswell, contact Anna Rains at [email protected] or 575-622-5440.

Questions? [email protected]

YOUNG LAWYERS DIVISION

NEEDED: Volunteer attorneys who can answer questions about:

Earn pro bono hours!

http://www.rmmlf.org

http://www.wcaofnm.com






In the Supreme Court of the State of New Mexico

Juror Appreciation Week RecognitionApril 27–May 1, 2015

WHEREAS, the right to a trial by jury is one of the core values of American citizenship;

WHEREAS, the obligation and privilege to serve as a juror are as fundamental to our democracy as the right to vote;

WHEREAS, our courts depend upon citizens to serve as jurors;

WHEREAS, service by citizens as jurors is indispensable to the judicial system;

WHEREAS, all citizens are encouraged to respond when summoned for jury service;

WHEREAS, a continuing and imperative goal for the courts, the bar, and the broader community is to ensure that jury selection and jury service are fair, effective, and not unduly burdensome on anyone; and

WHEREAS, one of the most significant actions a court system can take is to show appreciation for the jury system and for the tens of thousands of citizens who annually give their time and talents to serve on juries.

BE IT RESOLVED that the New Mexico State Courts are committed to the following goals:

educating the public about jury duty and the importance of jury service;

applauding the efforts of jurors who fulfill their civic duty;

ensuring that the responsibility of jury service is shared fairly by supporting employees who are called upon to serve as jurors;

ensuring that the responsibility of jury service is shared fairly among all citizens and that a fair cross section of the community is called for jury service including this State’s non-English speaking population;

ensuring that all jurors are treated with respect and that their service is not unduly burdensome;

providing jurors with tools that will assist their decision making; and

continuing to improve the jury system by encouraging productive dialogue between jurors and court officials.

NOW, THEREFORE, I, Barbara J. Vigil, Chief Justice of the Supreme Court of New Mexico, do hereby recognize the week of April 27 - May 1, 2015, as Juror Appreciation Week in New Mexico and encourage all state courts in New Mexico to support the celebration of this week.

DONE in Santa Fe, New Mexico, this 13th day of April, 2015.

Barbara J. Vigil, Chief Justice


Legal EducationApril

24 The Brain-Smart Negotiator: Skills and Practices for the Effective Litigator

4.8 G, 1.2 EP Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

24 34th Annual Update on New Mexico Tort Law

6.0 G, 1.0 EP Albuquerque New Mexico Trial Lawyers’

Foundation 505-243-6003 www.nmtla.org

28 New Mexico Administrative Law Institute 2014

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

28 Accounting for Lawyers (2014) 6.0 G Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

28 Practice Management, the Cloud, and Your Firm (Online Practice Management Strategies 2014)

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

28 Establishing Your Online Presence, Ethically and Professionally (Online Practice Management Strategies 2014)

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

28–29 Eminent Domain, Parts 1–2 2.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

29 Mistakes We’ve Made and Hope you Can Avoid

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

30 ADR Series: Mediating in Courts of Limited Jurisdiction—Are You Part of the Solution or Part of the Problem?

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

30 ID Theft Prevention and Remediation

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

30 Ethicspalooza: Conflicts of Interest 1.0 EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

30 Ethicspalooza: All Those Fees 1.0 EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

30 An Amazing Time in the Supreme Court

1.0 G Santa Fe New Mexico Chapter of the Federal

Bar Association [email protected]

May

1 2015 Spring Elder Law Institute: Developments in Elder Law Rules and Regulations

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

1 Criminal Justice Issues In & Around Indian Country

4.5 G, 1.0 EP Durango, Colo. New Mexico Criminal Defense

Lawyers Association 6.0 G 505-992-0050 www.nmcdla.org

1 Government Transparency: Recent Issues in Access to Public Records and Open Meetings

5.0 G, 1.0 EP Albuquerque New Mexico Foundation for Open

Government 505-764-3750 www.nmfog.org


http://www.nmtla.org













http://www.nmcdla.org

http://www.nmfog.org


Legal Education www.nmbar.org

May

1 The Second, Best Federal Bar Seminar Ever

6.0 G Albuquerque U.S. District Court, District of New

Mexico 505-348-2136 www.nmd.uscourts.gov

4 2015 Fiduciary Litigation Update 1.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

5 Writing and Speaking to Win (2014)

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

5 The Family Law Client in the Context of Immigration Law: What Every Attorney Should Know to Maximize Results for Noncitizen Clients


5 2015 Ethicspalooza: Ethically Managing Your Practice


5 2015 Ethicsplaooza: Proper Trust Accounting


5 Law Practice Succession—A Little Thought Now, a Lot Less Panic Later (2014)


5 Drafting Effective Employee Handbooks

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

7 Business Valuation in Transactional Documents: Formulas, Comps & the Market


8 2015 Health Law Legislative Update 1.0 G Live Seminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

12 Letters of Intent in Transactions- Farming a Deal & Avoiding Liability


13 2015 FMLA Update 1.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

14 Essential Title Examination in Real Estate & Curing Defects


15 Ethics for Estate Planners 1.0 EP National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

19 From Workers’ Compensation to Social Security: Complementary Areas to Build Your Practice (2014)


19 2014 Business Law Institute 5.0 G, 1.0 EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

19 2015 Ethicspalooza: All Those Fees 1.0 EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

19 2015 Ethicspalooza: Conflicts of Interest


19 Ethics and Professionalism: Advice from the Bench and Bar (2014)


19 Drafting Confidentiality & Nondisclosure Agreements


20 Fiduciary Duties and Liability of Nonprofit/Exempt Organization Directors



http://www.nmd.uscourts.gov






















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. 35,221 State v. Jones COA 34,024 04/10/15No. 35,213 Hilgendorf v. Chen COA 33056 04/06/15No. 35,212 Guerin v. State 12-501 04/06/15No. 35,217 Hernandez v. Horton 12-501 04/03/15No. 35,209 US Bank v. Martin COA 34,160 04/03/15No. 35,207 Mayer v. Jones COA 32,338 04/01/15No. 35,206 State v. Gonzales COA 33,884 04/01/15No. 35,205 Sotelo v. State 12-501 04/01/15No. 35,204 State v. Skaggs COA 34,127 03/31/15No. 35,128 Tinsley v. Cepeda COA 33,864 03/30/15No. 35,203 Graham v. Hatch 12-501 03/27/15No. 35,198 Noice v. BNSF COA 31,935 03/27/15No. 35,197 State v. Juarez COA 34,154 03/27/15No. 35,194 Andazola v. State 12-501 03/23/15No. 35,193 State v. Phillips COA 33,879 03/23/15No. 35,192 State v. Avalos COA 32,689 03/20/15No. 35,191 State v. Yanez COA 33,954 03/20/15No. 35,183 State v. Tapia COA 32,934 03/18/15No. 35,182 State v. Tapia COA 32,277 03/17/15No. 35,181 State v. Winters COA 32,669 03/17/15No. 35,159 Jacobs v. Nance 12-501 03/12/15No. 35,152 Arellano v.

N.M. Dept. of Health COA 34,062 03/06/15 Response ordered; due 4/21/15No. 35,151 State v. Foust COA 34,060/34,074 03/04/15No. 35,150 State v. Kerry K. COA 33,341 03/04/15No. 35,145 State v. Benally COA 31,972 03/02/15 Response ordered; due 4/21/15No. 35,091 Lopez v. Tapia 12-501 03/02/15No. 35,116 State v. Martinez COA 32,516 02/25/15No. 35,122 Lente v. State 12-501 02/13/15No. 35,121 State v. Chakerian COA 32,872 02/13/15No. 35,106 Salomon v. Franco 12-501 02/04/15No. 35,097 Marrah v. Swisstack 12-501 01/26/15No. 35,084 Branch v. State 12-501 01/16/15 Response ordered; due 5/21/15No. 35,040 Montoya v. Wrigley 12-501 12/15/14No. 35,037 Graham v. Hatch 12-501 12/15/14No. 35,099 Keller v. Horton 12-501 12/11/14No. 35,068 Jessen v. Franco 12-501 11/25/14No. 34,949 State v. Chacon COA 33,748 10/27/14 Response filed 10/31/14No. 34,937 Pittman v.

N.M. Corrections Dept. 12-501 10/20/14No. 34,932 Gonzales v. Sanchez 12-501 10/16/14No. 34,881 Paz v. Horton 12-501 10/08/14No. 34,913 Finnell v. Horton 12-501 09/22/14 Response ordered; filed 4/2/15No. 34,907 Cantone v. Franco 12-501 09/11/14No. 34,885 Savage v. State 12-501 09/08/14No. 34,878 O’Neill v. Bravo 12-501 08/26/14

No. 34,777 State v. Dorais COA 32,235 07/02/14 Response filed 7/31/14No. 34,790 Venie v. Velasquz COA 33,427 06/27/14 Response ordered; due 8/22/14No. 34,765 Helfferich v. Frawner 12-501 06/24/14 Response ordered; filed 3/25/15No. 34,793 Isbert v. Nance 12-501 06/23/14No. 34,775 State v. Merhege COA 32,461 06/19/14No. 34,776 Serna v. Franco 12-501 06/13/14No. 34,748 Smith v. State 12-501 06/06/14No. 34,731 Helfferich v. Frawner 12-501 05/29/14 Response ordered; filed 3/25/15No. 34,739 Holguin v. Franco 12-501 05/21/14No. 34,706 Camacho v. Sanchez 12-501 05/13/14No. 34,563 Benavidez v. State 12-501 02/25/14 Response ordered; filed 5/28/14No. 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 11/28/12 Response ordered; filed 1/22/13No. 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 07/12/12 Response ordered; due 10/24/12No. 33,630 Utley v. State 12-501 06/07/12

Certiorari Granted but Not yet Submitted to the Court:

(Parties preparing briefs) Date Writ IssuedNo. 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. 34,400 State v. Armijo COA 32,139 12/20/13No. 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. 34,843 State v. Lovato COA 32,361 08/29/14No. 34,726 Deutsche Bank v.

Johnston COA 31,503 08/29/14No. 34,668 State v. Vigil COA 32,166 09/26/14No. 34,855 Rayos v. State COA 32,911 10/10/14No. 34,728 Martinez v. Bravo 12-501 10/10/14No. 34,812 Ruiz v. Stewart 12-501 10/10/14No. 34,886 State v. Sabeerin COA 31,412/31,895 10/24/14No. 34,866 State v. Yazzie COA 32,476 10/24/14No. 34,854 State v. Alex S. COA 32,836 10/24/14

Effective April 10, 2015


Writs of CertiorariNo. 34,830 State v. Mier COA 33,493 10/24/14No. 34,826 State v. Trammel COA 31,097 10/24/14No. 34,997 T.H. McElvain Oil & Gas v.

Benson COA 32,666 12/19/14No. 34,993 T.H. McElvain Oil & Gas v.

Benson COA 32,666 12/19/14No. 34,978 Atherton v. Gopin COA 32,028 12/19/14No. 34,946 State v. Kuykendall COA 32,612 12/19/14No. 34,945 State v. Kuykendall COA 32,612 12/19/14No. 34,940 State v. Flores COA 32,709 12/19/14No. 34,929 Freeman v. Love COA 32,542 12/19/14No. 35,063 State v. Carroll COA 32,909 01/26/15No. 35,035 State v. Stephenson COA 31,273 01/26/15No. 35,016 State v. Baca COA 33,626 01/26/15No. 34,974 Moses v. Skandera COA 33,002 01/26/15No. 34,995 State v. Deangelo M. COA 31,413 02/06/15No. 35,069 Arencon v.

City of Albuquerque COA 33,196 02/27/15No. 35,049 State v. Surratt COA 32,881 02/27/15No. 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 04/03/15

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. 33,898 Bargman v. Skilled Healthcare

Group, Inc. COA 31,088 09/11/13No. 33,884 Acosta v. Shell Western Exploration

and Production, Inc. COA 29,502 10/28/13No. 34,013 Foy v. Austin Capital COA 31,421 11/14/13No. 34,085 Badilla v. Walmart COA 31,162 12/04/13No. 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. 34,120 State v. Baca COA 31,442 03/26/14No. 34,122 State v. Steven B. consol. w/

State v. Begaye COA 31,265/32,136 08/11/14No. 34,546 N.M. Dept. Workforce Solutions v.

Garduno COA 32,026 08/13/14No. 34,447 Loya v. Gutierrez COA 32,405 08/27/14No. 34,295 Dominguez v. State 12-501 09/24/14No. 34,501 Snow v. Warren Power COA 32,335 10/01/14

No. 34,554 Miller v. Bank of America COA 31,463 11/10/14

No. 34,516 State v. Sanchez COA 32,994 12/17/14No. 34,613 Ramirez v. State COA 31,820 12/17/14No. 34,548 State v. Davis COA 28,219 01/14/15No. 34,526 State v. Paananen COA 31,982 01/14/15No. 34,549 State v. Nichols COA 30,783 02/25/15No. 34,798 State v. Maestas COA 31,666 03/25/15No. 34,637 State v. Serros COA 31,975 04/13/15No. 34,630 State v. Ochoa COA 31,243 04/13/15No. 34,789 Tran v. Bennett COA 32,677 04/13/15No. 34,772 City of Eunice v. N.M. Taxation

and Revenue Dept. COA 32,955 04/27/15No. 33,994 Gonzales v. Williams COA 32,274 04/27/15No. 33,863 Murillo v. State 12-501 04/27/15No. 33,810 Gonzales v. Marcantel 12-501 04/27/15No. 34,769 State v. Baca COA 32,553 04/29/15No. 34,786 State v. Baca COA 32,523 04/29/15No. 35,005 State v. Archuleta COA 32,794 04/29/15

Petition for Writ of Certiorari Dismissed:

Date Order FiledNo. 34,805 King v.

Behavioral Home Care COA 31,682 04/03/15

Petition for Writ of Certiorari Denied:

Date Order FiledNo. 35,190 State v. Tapia COA 32,277 04/10/15No. 35,189 Behles Law v. Hudson COA 33,897 04/10/15No. 35,188 CYFD v. Tina P. COA 33,899 04/10/15No. 35,185 State v. Beckwith COA 33,828 04/10/15No. 35,184 State v. Vuljevic COA 33,860 04/10/15No. 35,180 State v. Rockymore COA 34,138 04/10/15No. 35,179 State v. Peralta COA 33,987 04/10/15No. 35,178 State v. Hunter COA 33,663 04/10/15No. 35,046 Ramirez v. Ortiz 12-501 04/10/15No. 35,164 State v. Najar COA 34,002 04/08/15No. 35,163 State v. Dominguez COA 34,121 04/06/15No. 35,157 Firstenberg v.

City of Santa Fe COA 33,441 04/06/15No. 35,156 State v. Garcia COA 33,794 04/06/15No. 35,108 Pena-Kues v.

Smith’s Food & Drug COA 32,790 04/06/15No. 35,105 Pena-Kues v.

Smith’s Food & Drug COA 32,790 04/06/15No. 35,098 Torres v. Hatch 12-501 04/06/15No. 34,589 Seager v. State 12-501 04/06/15


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


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

Published Opinions

No. 33413 1st Jud Dist Santa Fe CV-11-1133, M VILDASOL v SEC OF STATE (affirm) 4/7/2015No. 33419 3rd Jud Dist Dona Ana CR-12-1414, STATE v R TUFTS (reverse) 4/7/2015No. 32693 1st Jud Dist Santa Fe CV-10-4411, J FLORES v M HERRERA (reverse) 4/7/2015No. 33237 AD AD ADM-12-1, GILA RESOURCES v WQCC (affirm) 4/8/2015No. 33238 AD AD ADM-12-1, STATE v NM WQCC (affirm) 4/8/2015No. 33245 AD AD WQCC-12-1, W OLSEN v NMWCC (affirm) 4/8/2015

Unublished OpinionsNo. 33137 11th Jud Dist San Juan CV-09-51, D MCWILLIAMS v M JENSEN (affirm) 4/6/2015No. 34128 5th Jud Dist Lea CR-13-551, STATE v B SLADE (affirm in part, reverse in part and remand) 4/6/2015No. 33806 5th Jud Dist Lea CR-13-330, STATE v J PUENTE (affirm) 4/7/2015No. 34178 2nd Jud Dist Bernalillo LR-13-68, STATE v J PACHECO (affirm) 4/7/2015No. 34202 2nd Jud Dist Bernalillo LR-13-22, STATE v R DOLIBER (affirm) 4/7/2015No. 33834 2nd Jud Dist Bernalillo LR-12-29, STATE v C BURKE (affirm) 4/8/2015No. 33838 11th Jud Dist San Juan CR-13-495, STATE v L MILLER (affirm) 4/8/2015No. 33978 11th Jud Dist San Juan CR-13-843, STATE v I JONES (reverse) 4/8/2015No. 34113 2nd Jud Dist Bernalillo LR-13-60, STATE v MIKE (affirm) 4/8/2015No. 34158 12th Jud Dist Lincoln CR-12-223, STATE v M SANDERS (affirm) 4/8/2015No. 34177 2nd Jud Dist Chaves CR-14-224, STATE v J LEYBA (affirm) 4/8/2015No. 34203 5th Jud Dist Chaves CR-14-224, STATE v J ORTEGA (reverse and remand) 4/8/2015No. 34304 5th Jud Dist Chaves CR-13-239, STATE v R YOINGCO (reverse and remand) 4/8/2015No. 34402 1st Jud Dist Santa Fe CV-13-831, D VIGIL v BONANZA CREEK (dismiss) 4/8/2015No. 32353 11th Jud Dist San Juan CR-11-1013, STATE v R NORBERTO (affirm) 4/9/2015No. 32504 11th Jud Dist San Juan LR-12-50, STATE v D CHARLIE (affirm) 4/9/2015

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


Dated April 7, 2013

Clerk’s Certificate of Address and/or

Telephone Changes

Marlo AragonCarpenter & Associates9202 San Mateo Blvd. NEAlbuquerque, NM 87113505-243-0065505-243-0067 (fax)[email protected]

Jeffery L. BiedermannAlaniz Schraeder Linker Farris Mayes, LLP2500 CityWest Blvd., Suite 1000Houston, TX 77042281-833-2200281-833-2240 (fax)[email protected]

Mia ChavezN.M. Department of Health - Office of General CounselPO Box 261101190 S. St. Francis Drive (87505)Santa Fe, NM 87502505-827-2938505-827-2930 (fax)[email protected]

Hon. Bradford J. DalleyEleventh Judicial District Court103 S. Oliver DriveAztec, NM 87410505-334-7786505-334-1940 (fax)

Elizabeth M. DranttelRose L. Brand & Associates, PC7430 Washington Street NEAlbuquerque, NM 87109505-833-3036Janet F. Ellis1031 N. Francis StreetCarlsbad, NM [email protected]

RoxeAnne B. EsquibelOffice of the Fifth Judicial District Attorney102 N. Canal Street, Suite 200Carlsbad, NM 88220575-885-8822575-628-8566 (fax)[email protected]

John FoustNixon Peabody LLPOne Embarcadero CenterSan Francisco, CA 94111415-984-8460855-742-1566 (fax)[email protected]

Kristin GromanLaw Offices of Denise L. Amanatidis10050 N. 25th Avenue, Suite 205Phoenix, AZ 85021602-643-1019877-369-5827 (fax)[email protected]

Stefanie J. GulleyPO Box 7756Albuquerque, NM 87194505-681-3222505-393-1078 (fax)[email protected]

Benjamin Grey HarrisTaylor & Garner2606 Wilson Street, Unit 703Austin, TX [email protected]

Jeremiah B. HayesTaherzadeh, PLLC5001 Spring Valley Road, Suite 1020WDallas, TX 75244469-729-6800469-828-2772 (fax)[email protected]

Harutiun KassakhianKassakhian Firm, PC100 Spectrum Drive, Suite 900Irvine, CA 92618949-936-2614949-936-2601 (fax)[email protected]

Steven J. Laurent183 El CortoLos Alamos, NM [email protected]

Albert Lewis PittsHinkle Shanor LLPPO Box 2068218 Montezuma Avenue (87501)Santa Fe, NM 87504505-982-4554505-982-8623 (fax)[email protected]

Hon. Pedro Gabaldon RaelThirteenth Judicial District Court - Cibola CountyPO Box 758515 W. High StreetGrants, NM 87020505-287-2104505-287-3658 (fax)

Shalom RubanowitzLaw Offices of Shalom Rubanowitz124 N. La Brea AvenueLos Angeles, CA 90036323-656-5847323-931-7514 (fax)[email protected]

Paul M. SplettOffice of the Attorney GeneralPO Box 1508408 Galisteo Street (87501)Santa Fe, NM [email protected]

Renee N. Ashley11101 Faye Avenue NEAlbuquerque, NM 87112505-908-0336505-214-5404 (fax)[email protected]

Paul Andrew Bleicher6905 Forest Hills Drive NEAlbuquerque, NM 87109

Darrell Brantley4227 Lyra CourtLas Cruces, NM [email protected]

Shelby Lynne CarlsonPO Box 137164Fort Worth, TX 76136

Emily DotsonResnick & Louis, PC3840 Masthead Street NEAlbuquerque, NM [email protected]

Heidi J. Frechette451 Seventh Street SWWashington, DC 20410

James HolmesHolmes PLLC900 Jackson Street, Suite 260Dallas, TX 75202214-520-8292214-521-9995 (fax)[email protected]

Katherine LoeweU.S. District Court - District of New Mexico333 Lomas Blvd. NW, Suite 760Albuquerque, NM 87102

Lily C. RichardsonResnick & Louis, PC3840 Masthead Street NEAlbuquerque, NM [email protected]



















Clerk’s Certificates

Nicoleta Spilca500 Marquette Avenue NW, Suite 1200Albuquerque, NM 87102505-255-0459505-212-0340 (fax)[email protected]

John S. Campbell ([email protected])Lawrence M. Wells ([email protected])Montgomery & Andrews, PA2155 Louisiana Blvd. NE, Suite 10300Albuquerque, NM 87110505-766-9926505-842-0063 (fax)

Daniel R. OlsenClapp, Moroney, Vucinich, Beeman & Scheley, PC6130 Stoneridge Mall Road, Suite 275Pleasanton, CA 94588925-734-0990925-734-0888 (fax)[email protected]

Jose Roberto PavonHoneywell Aerospace2524 S. El Paradiso, Unit 16Mesa, AZ [email protected]

A. Blair DunnWestern Agriculture, Resource and Business Advocates, LLP1801 Rio Grande Blvd. NW, Unit 2-CAlbuquerque, NM 87104505-750-3060505-226-8500 (fax)[email protected]

Joshua Monroe CurtisCurtis and Lucero301 Gold Avenue SW, Suite 201Albuquerque, NM 87102505-243-2808505-242-0812 (fax)[email protected]

Daniel J. Herbison4801 Lomas Blvd. NEAlbuquerque, NM [email protected]

Mona N. ValicentiOffice of the Attorney GeneralPO Box 1508408 Galisteo Street (87501)Santa Fe, NM 87504505-827-6994505-827-6478 (fax)[email protected]

Clerk’s Certificate of Withdrawal

Effective April 1, 2015:LeRoy Wilson Duarte1412 Lomas Blvd. NWAlbuquerque, NM 87104

Effective March 31, 2015:Brittany KubesLegal Aid Service of Northeastern Minnesota424 W. Superior Street, Floor 3Duluth, MN 55802

Effective March 26, 2015:Robert Joseph Maguire7017 Arroyo Del Oso Ave. NEAlbuquerque, NM 87109

Effective April 1, 2015:Hon. Kenneth H. Martinez (ret.)12524 Prospect Avenue NEAlbuquerque, NM 87112

Clerk’s Certificate of Change to Inactive

Status

Effective March 31, 2015:Randal T. EvansEvans Law PLC2158 N. Gilbert Road, Suite 110Mesa, AZ 85203602-743-9733602-467-3188 (fax)[email protected]

Effective March 30, 2015:Suann Hendren8606 La Sala del Centro NEAlbuquerque, NM [email protected]

Effective April 1, 2015:Henry A. KellyP.O. Box 26266Albuquerque, NM 87125

Clerk’s Certificate of Admission

On March 31, 2015:Lyn M. KiehlMINDSET2441 Ridgecrest Drive SEAlbuquerque, NM 87108505-249-7058505-348-8542 (fax)[email protected]

Clerk’s Certificate of Reinstatement to

Active Status

Effective March 31, 2015:Jose Angel Silva Jr.927 Park RoadEl Paso, TX [email protected]















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


Pending Proposed Rule Changes Open for Comment:

Comment Deadline

Recently Approved Rule Changes Since Release of 2015 NMRA:

Comment Deadline

For 2014 year-end rule amendments that became effective December 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.

Rule No. Set/Title Effective Date

Uniform Jury Instructions-Criminal

14 602 Withdrawn 04/03/1514 603 Withdrawn 04/03/1514 604 Withdrawn 04/03/1514 605 Withdrawn 04/03/1514 610 Withdrawn 04/03/1514 611 Chart 04/03/1514 612 Child abuse not resulting in death or great

bodily harm; essential elements 04/03/1514 615 Child abuse resulting in great bodily harm;

essential elements 04/03/1514 621 Child abuse resulting in death; child at least

12 but less than 18; essential elements 04/03/1514 622 Child abuse resulting in death; reckless disregard;

child under 12; essential elements 04/03/1514 623 Child abuse resulting in death; intentional act;

child under 12; essential elements 04/03/1514 625 Jury procedure for various degrees of

child abuse resulting in death of a child under twelve years of age 04/03/15

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

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

http://www.nmcompcomm.us/

http://nmsupremecourt.nmcourts.gov

http://www.nmcompcomm.us


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

From the New Mexico Supreme Court and Court of Appeals

Certiorari Denied, January 14, 2015, No. 34,962


Opinion Number: 2015-NMCA-016

STEVEN JONES, D.O., BRANT BAIR, M.D. AND SANFORD DAVID SCHULHOFER, D.P.M. and

THE NORTHERN NEW MEXICO ORTHOPAEDIC CENTER, P.C.,Plaintiffs/Counter-Defendants/Appellees,

v.WAYNE K. AUGÉ, II,

Individually and as Trustee of the Covalent Global Trust U/T/I dated 12/1/03,Defendant/Counter-Plaintiff/Appellant

Docket No. 32,178 (filed September 16, 2014)

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTYRAYMOND Z. ORTIZ, District Judge

JANE B. YOHALEMLAW OFFICE OF JANE B. YOHALEM

Santa Fe, New Mexico

JEFFREY R. BRANNEN Santa Fe, New Mexico

for Appellees

CHRISTOPHER M. MOODYMOODY & WARNER, P.C.

Albuquerque, New Mexico

ALICE T. LORENZLORENZ LAW

Albuquerque, New Mexicofor Appellant

Opinion

Michael D. Bustamante, Judge{1} Appellees Steven Jones, D.O., Brant Bair, M.D., Sanford David Schulhofer, D.P.M., and the Northern New Mexico Or-thopaedic Center, P.C. (NNMOC) brought suit against Wayne K. Augé, II, M.D. (Appellant) for fraud in the inducement, misrepresentation, breach of contract, securities fraud, breach of fiduciary duty to shareholders, breach of fiduciary duty to corporation, and prima facie tort after Jones, Bair, and Schulhofer discovered that, unbeknownst to them, Appellant had included in his shareholder employment agreement a deferred compensation clause that was significantly different from—and more generous than—theirs. In the course of discovery, Appellees also learned that Appellant had caused NNMOC to over-compensate him by over $370,000. After a bench trial, the district court found in

favor of Appellees and awarded compen-satory and punitive damages. Appellant appeals. We affirm the judgment with the exception of one item of compensatory damages that we remand for reconsidera-tion.1

PREFATORY MATTERS{2} The district court entered 234 find-ings of fact and forty-five conclusions of law. Appellant challenges fifty-nine of the findings of fact. In addition to the argu-ments in his brief in chief, Appellant makes several new arguments in his reply brief. In reviewing his arguments, we are guided by several principles of appellate review. First, “[o]n appeal, a reviewing court liberally construes findings of fact adopted by the fact finder in support of a judgment[.]” Toynbee v. Mimbres Mem’l Nursing Home, 1992-NMCA-057, ¶ 16, 114 N.M. 23, 833 P.2d 1204. Second, “such findings are suf-ficient if a fair consideration of all of them taken together supports the judgment entered below.” Id. Third, “[w]e have long

held that findings are sufficient where they justify the judgment, though they intermingle matters of fact and conclu-sions of law.” Watson Land Co. v. Lucero, 1974-NMSC-003, ¶ 5, 85 N.M. 776, 517 P.2d 1302. Fourth, appellate courts gener-ally “do not address issues raised for the first time in a reply brief, [unless] the arguments in [the a]ppellants’ reply brief . . . are ‘directed only to new arguments or authorities presented in the answer brief.’ ” Mitchell-Carr v. McLendon, 1999-NMSC-025, ¶ 29, 127 N.M. 282, 980 P.2d 65 (quot-ing Rule 12-213(C) NMRA (1999)). Fifth, “[w]e will not review unclear arguments, or guess at what [an appellant’s] arguments might be.” Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076.{3} Applying these principles, we decline to review Appellant’s arguments that “[v]irtually all ‘overpayment’ from 2007 through 2009 resulted from . . . adding depreciation to the expenses attributable to each shareholder” and that Appellees failed to prove damages related to securities fraud, because they were first raised in the reply brief. We also decline to address Appellant’s contentions that the district court intermingled findings of fact and conclusions of law or other arguments, the resolution of which would have no impact on the judgment.{4} Rule 12-213(A)(3) requires appellants to provide “a summary of the facts relevant to the issues presented for review.” New Mexico case law is clear that this require-ment compels appellants to set out a full summary of the pertinent evidence admit-ted at trial, including the facts supporting the district court’s findings and conclusions, and that this Court may decline review for failure to do so. See, e.g., Chavez v. S.E.D. Labs., 2000-NMCA-034, ¶ 26, 128 N.M. 768, 999 P.2d 412 (“[W]e review substan-tial evidence claims only if the appellant apprises the Court of all evidence bearing upon the issue, both that which is favorable and that which is contrary to appellant’s position. Failure to do so may result in our deeming the issue waived.” (citations omitted)), aff ’d in part, rev’d in part, 2000-NMSC-034, 129 N.M. 794, 14 P.3d 532; see also Gish v. Hart, 1966-NMSC-028, ¶ 10, 75 N.M. 765, 411 P.2d 349. Rule 12-213(A)(3) reflects the standard of review we apply to

1 Though not a matter of particular substance in this case, we also reverse the conclusion that a prima facie tort was committed.



http://www.nmcompcomm.us/Advance Opinionschallenges to factual findings where “it is the supporting evidence, not that adverse to the finding, that ordinarily determines the issue.” Gish, 1966-NMSC-028, ¶ 10. Here, Appellant’s summary of the evidence comes perilously close to being too one-sided for review. We conclude that Appellant complied with the rule sufficiently to allow review. See State v. Martinez, 1996-NMCA-109, ¶ 13, 122 N.M. 476, 927 P.2d 31 (stating that non-compliance with Rule 12-213(A)(3) “does not require this Court to disregard an issue when an appellant fails to comply with its provisions”). But we again urge all counsel appearing before us to abide by the spirit and letter of the rule.BACKGROUNDThe Parties{5} The NNMOC is a professional corpo-ration of orthopaedic surgeons founded by Appellant in 1998. Dr. Wise was an NNMOC shareholder from 1998 to 2008. Drs. Jones, Bair, and Schulhofer joined NNMOC as shareholders in 2007, 2008, and 2009, respectively. The shareholders each owned the same amount of stock in NNMOC.Shareholder Agreements{6} Jones, Bair, Schulhofer, and Appellant each signed a shareholder employment agreement, a shareholder agreement, and a subscription agreement that collec-tively set out their rights and obligations as shareholders of NNMOC. Because the terms of the shareholder employment agreements are most at issue, we provide a summary of their critical terms. Details about the other agreements are provided as needed in our discussion.{7} The shareholder employment agree-ment governs the shareholders’ compensa-tion, deferred compensation, and termina-tion. Compensation for each shareholder is based on each physician’s “direct physi-cian gross revenue,” which is defined as “all revenues collected by NNMOC on account of medical services provided by Physician to NNMOC patients net of New Mexico gross receipts taxes.” The compensation clause goes on to state that:

Physician shall be entitled to receive as compensation for all services rendered by Physician under this Agreement during the term hereof (“Physician’s Com-pensation”) an amount equal to: the sum of: (i) Direct Physician

Gross Revenues, plus (ii) a percentage of revenues

collected by NNMOC

on account of Ancillary Services equal to the per-centage of the total com-mon stock of NNMOC owned by Physician,

less: the amount of NNMOC’s over-

head attributable to Physician.{8} “Ancillary services” are defined as “x-rays, physical, occupational and other therapy services, physician assistant ser-vices, soft goods, medications, cast sup-plies, medical supplies, and other products or services not provided directly by Physi-cian[.]”{9} Under the compensation clause, each shareholder is paid a salary based on the “anticipated amount of Physician’s Com-pensation.” In addition, “[a]t the end of each quarter, if Physician’s Compensation exceeds the amount of Physician’s [s]alary during such quarter, the difference will be paid to Physician as additional salary.” The parties referred to this payment as a “bonus.” If, on the other hand, the salary is more than Physician’s Compensation for the quarter, each shareholder “will be liable to repay NNMOC the difference between [the s]alary and Physician’s Compensa-tion.” The compensation clause is the same for all shareholders.{10} In contrast to the compensation clause, Appellant’s deferred compensa-tion clause differs from that in Appellees’ shareholder employment agreements. The deferred compensation clause in Appellees’ shareholder employment agreement provides for payment of sixty percent of direct physician gross revenues for six months after termina-tion in compliance with the termination clause. Appellant’s deferred compensa-tion clause provides for eighty percent of direct physician gross revenues for six months and twenty percent of ancillary services revenue for three years after termination. This difference and, more importantly, how it came about, forms the basis for Appellees’ fraud claims, as well as a portion of their breach of fiduciary duty claims.Procedural Background{11} Appellees sued Appellant for fraud, misrepresentation, breach of contract, securities fraud, breach of fiduciary duty to shareholders, breach of fiduciary duty to corporation, and prima facie tort. They also sought declaratory judgment that the deferred compensation clause in Appel-lant’s shareholder employment agreement is void to the extent it differs from that

in Appellees’ shareholder employment agreements. Appellant denied all claims and counterclaimed, alleging breach of contract, minority shareholder oppression, breach of fiduciary duty, and tortious in-terference with contract. He also requested “an accounting of the assets and liabilities of NNMOC.”{12} Just before trial, the district court granted Appellees’ motions for summary judgment both with regard to the proper methodology for calculating the value of NNMOC shares when a shareholder’s em-ployment is terminated and the exclusion of non-shareholder physician employee revenues from ancillary services revenue. It denied summary judgment as to when Appellant had ceased being a shareholder and whether Appellant’s deferred compen-sation clause violated 42 U.S.C. § 1395nn (2012), which “prohibit[s] physicians from making referrals to, and prohibit[s] labo-ratories from billing Medicare for, services ordered by physicians who have a financial interest in the laboratory.” Atl. Urological Assocs., P.A. v. Leavitt, 549 F. Supp. 2d 20, 22 (D.D.C. 2008). The parties proceeded to trial on all other issues.{13} After a bench trial, the district court entered extensive findings of fact and conclusions of law. In sum, the district court concluded, among other things, that Appellant made knowing misrepresentations to Jones, Bair, and Schulhofer; committed securities fraud by inducing them to become sharehold-ers; fraudulently induced Jones, Bair, and Schulhofer into signing the shareholder employment agreements; committed a continuing fraud and breached his fiduciary and other duties to Appellees and NNMOC by knowingly overcom-pensating himself and by concealing from Appellees that he had done so; breached his shareholder employment agreement and shareholder agreement; and committed prima facie tort. It also found that “all of the claims brought by [Appellant] in this matter [are] without merit” and denied Appellant’s request for an accounting.{14} The final judgment ordered Appel-lant to pay NNMOC $527,821.49 for his negative balance with the corporation, which includes the amount Appellant was overcompensated and the amount he failed to pay in overhead costs. Appel-lant was also ordered to pay $72,936.32 for the negative value of his NNMOC shares. The district court also awarded $1 million in punitive damages. Finally, the



http://www.nmcompcomm.us/Advance Opinionsdistrict court granted Appellees’ request for declaratory relief that “Paragraph 8 of [Appellant’s] [s]hareholder [e]mployment [a]greement is null and void to the extent it grants deferred compensation to [Appel-lant] which is different than that set forth in [Appellees’] deferred compensation provision[].”{15} The district court based its conclu-sions of law and judgment on the findings of fact, which reflect a pattern of self-deal-ing and misrepresentation made possible by Appellant’s control of corporate records and financial matters. If the district court’s findings of fact are supported by substan-tial evidence in the record, the judgment must be affirmed.{16} The findings of fact reveal that Appellant founded NNMOC in 1998. In 2005, after Appellee Jones became a non-shareholder employee, Appellant began talking to him about becoming a shareholder in NNMOC. Jones decided to become a shareholder based on Appellant’s representations that NNMOC would be a firm of equals. Appellant, with the help of NNMOC’s attorney, prepared a form of shareholder employee agreement. Ap-pellant led Jones to believe that his share-holder employment agreement was the same as Appellant’s with two exceptions: Appellant did not have a non-compete clause, and he could be terminated for cause only. Jones accepted the proposed shareholder employment agreement with the understanding that both the current and deferred compensation provisions were identical to Appellant’s. Jones signed his agreements on or about July 31, 2007.{17} Unbeknownst to Jones, Appellant modified his shareholder employment agreement within a month or two there-after, putting in place a materially more generous deferred compensation package for Appellant. Appellant never told Jones about the changes he had instituted.{18} Later, in 2008 and 2009, Appellant induced Appellees Bair and Schulhofer to become shareholders of NNMOC in part by making the same representations he had made to Jones concerning the compensa-tion package. Appellant never showed his shareholder employment agreement to Jones, Bair or Schulhofer. In fact, Appellant kept tight control of the corporate records as a whole, keeping them with him and not making the records available at the offices of NNMOC.{19} Jones, Bair, and Schulhofer did not discover that the deferred compensation packages differed until January 2010. Ap-

pellant had approached them a few months before with the idea of taking a leave of absence, and it was during the negotiations for the terms of the leave that the differ-ence was disclosed by NNMOC’s attorney. After disclosure of the difference between the shareholder employment agreements, negotiations for the leave of absence could not be successfully completed, and Appel-lant resigned in November 2010.{20} After his resignation, Appellees started this litigation seeking damages and a declaration nullifying Appellant’s shareholder employment agreement to the extent it was different from the other shareholder employment agreements with regard to deferred compensation. In the course of discovery, Appellees learned that Appellant had substantially over-compensated himself in 2008 and 2009 and had hidden the overcompensation from his fellow shareholders, NNMOC’s external accountant, and its internal prac-tice manager. Appellant was able to hide the overpayments because he maintained control of corporate finances—in particu-lar the calculation of bonuses under the shareholder employment agreements—to the exclusion of everyone else. Appellant alone calculated the bonuses. Appellant controlled and kept in his possession the paper files on which he reported his calculations and did not share them or his calculations with anyone. The overpay-ments in 2008 and 2009 amounted to over $370,000, an amount which materially adversely affected his fellow shareholders and NNMOC.{21} Other pertinent findings of fact will be outlined as needed in the following discussion.DISCUSSION{22} Appellant makes five main argu-ments: three relate to liability issues and two relate to damages. As to liability, Appellant maintains that Appellees failed to prove fraud and argues that a breach of fiduciary duty cannot be based on contractual duties. Appellant also argues that the prima facie tort cannot be based on the same facts as other torts. In relation to damages, he argues that the amount of compensatory damages should be reduced and that the award of punitive damages was improper. We begin with the liability arguments.I. LiabilityA. Fraud{23} Appellant makes two arguments to the effect that Appellees failed to prove fraud in the inducement or securities fraud. We address them in turn.

1. Voidness/Materiality{24} Appellant argues that Appellees failed to prove fraud in the inducement or securities fraud because his deferred compensation clause was void ab initio or because his representations about the clause were immaterial. Both arguments are based on misinterpretations of the district court’s findings.{25} Appellant’s position that the de-ferred compensation clause was void ab initio rests on two of the district court’s conclusions. First, Appellant relies on the district court’s use of the term “void ab initio” to argue that the deferred com-pensation clause in Appellant’s agreement “never could have had any legal effect.” Appellant overstates the significance of the district court’s use of the term. The refer-enced conclusion states, “The language of [Appellant’s] [s]hareholder [e]mployment [a]greement regarding his deferred com-pensation benefit based on a percentage of ancillary services revenue is void ab initio because it violates [42 U.S.C. § 1395nn].” (Emphasis omitted.) This language refers specifically to the provision in Appellant’s agreement entitling him to a percentage of the ancillary services revenue for three years after termination from NNMOC. It does not address the other portion of Appellant’s deferred compensation clause that is different from the clauses in Appel-lees’ agreements, i.e., the provision giving him eighty percent of direct physician gross revenues. Thus, the district court concluded only that the ancillary services revenue provision violated 42 U.S.C. § 1395nn and that only that provision was void. It did not conclude that the entire clause was void ab initio.{26} Second, Appellant points to the district court’s conclusion that “[t]he [s]hareholder [e]mployment [a]greement of [Appellant] is not a valid contract be-tween him and [NNMOC].” He directs us to AMX International, Inc. v. Battelle En-ergy Alliance, LLC, a federal district court case, in which AMX sued Battelle, its cli-ent, for tortious interference with contract after Battelle hired several AMX employees in spite of the fact that the employees’ con-tracts with AMX included non-compete clauses precluding them from working for AMX clients. 744 F. Supp. 2d 1087, 1089-90 (D. Idaho 2010). Battelle argued that it could not have interfered with AMX’s contracts with its employees because the contracts were unenforceable because the non-compete clause was contrary to public policy. Id. at 1093. The court stated that



http://www.nmcompcomm.us/Advance Opinionsalthough “protection is extended against unjustifiable interference with contracts even though the contract is voidable or unenforceable in an adversary proceed-ing[,] . . . this protection does not extend to contracts void ab initio.” Id. (alteration, internal quotation marks, and citation omitted). It concluded that “[c]ontracts that are void ab initio are deemed never to have existed in the eyes of the law and cannot form the basis for a tortious inter-ference action.” Id. Having set out this rule, the court went on to examine whether the non-compete clause in AMX’s contract was “void ab initio or simply voidable.” Id. It concluded that because AMX’s non-compete clause was unreasonably broad, it violated public policy and was, therefore, void ab initio. Id. at 1095. It concluded that “the contracts, which were unenforceable as written, cannot support AMX’s action against Battelle for tortious interference with contract.” Id.{27} AMX is distinguishable from this case. While contract clauses that violate public policy are void, i.e., “[o]f no legal effect[,]” Black’s Law Dictionary 1709 (9th ed. 2009), where, as here, there is fraud in the inducement to enter into the contract, the contract is merely voidable, i.e., “capable of being affirmed or rejected at the option of one of the parties.” Id.; see McLean v. Paddock, 1967-NMSC-165, ¶ 10, 78 N.M. 234, 430 P.2d 392 (stating that “[w]here [fraud] is in the induce-ment, the instrument is voidable,” not void), overruled on other grounds by Duke City Lumber Co. v. Terrel, 1975-NMSC-041, 88 N.M. 299, 540 P.2d 229. When a contract or clause is voidable, it remains in effect “until the fraud by which [the defrauded party] had been induced to sign [is] discovered.” Gross, Kelly & Co. v. Bibo, 1914-NMSC-085, ¶ 35, 19 N.M. 495, 145 P. 480. Thus, here, unlike in AMX and contrary to Appellant’s position, the deferred compensation clause continued in full force and effect until Appellees’ request for modification of it was granted by the district court.{28} Finally, we interpret the district court’s conclusion that the agreement was “not a valid contract” to incorporate both the district court’s determination that Appellant’s deferred compensation clause was voidable and that it was in fact void at the request of Appellees. See Golden Cone Concepts, Inc. v. Villa Linda Mall, Ltd., 1991-NMSC-097, ¶ 8, 113 N.M. 9, 820 P.2d 1323 (“When a party is challenging a legal conclusion, [we examine] whether

the law correctly was applied to the facts, viewing them in a manner most favor-able to the prevailing party, indulging all reasonable inferences in support of the court’s decision, and disregarding all infer-ences or evidence to the contrary.”). This interpretation is supported by the fact that Appellees’ complaint sought modification of the deferred compensation clause, not avoidance of the entire contract and the judgment orders only reformation of the clause, not rescission of the entire contract.{29} We turn next to Appellant’s con-tention that his representations about the deferred compensation clause were immaterial. He argues that “a representa-tion about . . . [the deferred compensa-tion clause], which was not intended to be enforced, cannot support a fraud claim, because fraud requires clear and convincing proof that a material fact was misrepresented or concealed.” Appel-lant relies on the district court’s finding that “[Appellant] told . . . Bair that the [deferred compensation clause] w[as] put in only as a safety net in the event that a new corporation . . . would be formed by the [Appellees that did not include Appellant]. He assured . . . Bair that the provision no longer applied.” Appellant interprets this statement as a finding that he in fact did not intend to enforce the clause and characterizes it as a finding that the deferred compensation clause was not a material term of the agreement. But this finding merely reflects the district court’s determination that Appellant made certain statements and does not indicate that the district court found that Appel-lant did not actually intend to enforce the clause. Appellant’s reading would not be consistent with the tenor of the district court’s findings about how the clause came into existence and the lengths Appellant went to hide its existence from his fellow shareholders and the numerous findings that they in fact relied on his misrepresen-tations. Thus, the finding has no bearing on the materiality of Appellant’s representa-tions.{30} Appellant also makes a cursory argument that, because the district court concluded that execution of the later agreements “constitute[s] a corporate modification of [Appellant’s] deferred compensation provision[,]” his deferred compensation clause was not a material, enforceable term at the time Appellees signed their shareholder employment agreements and, therefore, he could not have committed fraud by misrepresent-

ing it. This argument rests on the premise that Appellant’s deferred compensation clause would never have been enforce-able. But there is nothing inherent about the shareholder employment agreements that would make differing clauses neces-sarily unenforceable. In fact, Appellees did not raise any arguments related to the other differences in the shareholder employment agreements. Just as they agreed to those terms, it is possible that the parties might have agreed to Appel-lant’s deferred compensation provision, or some variation of it, had he not lied about it. Instead, it was because of Appel-lant’s misrepresentation of the terms that Appellees challenged Appellant’s deferred compensation clause. The fact that the district court concluded after trial that Appellant’s deferred compensation clause was modified does not preclude a find-ing that Appellant’s misrepresentations about his deferred compensation clause were material to Appellees when made. To treat them otherwise would be absurd: Appellees would be deprived of a remedy because they proved that the clause should not be enforced.{31} In sum, we conclude that the de-ferred compensation clause, with the exception of the language contrary to 42 U.S.C. § 1395nn, was in full force and effect until it was reformed and, therefore, was an adequate basis for Appellees’ fraud in the inducement claim. We also conclude that neither Appellant’s statements about his intent to enforce his deferred com-pensation clause nor the district court’s conclusion that it was modified preclude a finding that Appellant’s deferred com-pensation clause was a material term of his shareholder employment agreement.2. Justifiable Reliance{32} Appellant next argues that Appel-lees failed to prove fraud when they failed to prove an essential element—that they justifiably relied on his representations. Although he styles this argument as a challenge to the district court’s findings, several of his assertions relate more to the legal significance of the district court’s findings than to the findings themselves. For instance, Appellant maintains that “[w]here, as here, the alleged misrepresen-tations were with respect to a document all [Appellees] admitted they were told to read, justifiable reliance was absent as a matter of law.” Appellant’s statement of the law is incorrect. Although “each party to a contract has a duty to read and fa-miliarize himself with the contents of the



http://www.nmcompcomm.us/Advance Opinionscontract, each party generally is presumed to know the terms of the agreement, and each is ordinarily bound thereby,” Ballard v. Chavez, 1994-NMSC-007, ¶ 8, 117 N.M. 1, 868 P.2d 646, where a party acts in good faith and “in accordance with reasonable standards of fair dealing[,]” id. (internal quotation marks and citation omitted), failure to do so does not automatically preclude a finding of justifiable reliance. See Sisneros v. Citadel Broad. Co., 2006-NMCA-102, ¶ 23, 140 N.M. 266, 142 P.3d 34 (holding that summary judgment as to whether a party justifiably relied on the other party’s representations when the first party failed to read the entire contract was improper where the “[p]laintiff . . . produced evidence giving rise to factual inferences that could reasonably support the determination that his failure to read the agreement was justified by [the other party’s] conduct”). Furthermore, because “[a] fraudulent misrepresentation is an in-tentional tort[,] . . . the plaintiff ’s recovery is not barred by his own negligence which has contributed to his loss.” Restatement (Second) of Torts § 545A cmt. a (1977). Finally, negligent reliance may be justi-fied “when there is a relation of trust and confidence between the parties or the defendant has made successful efforts to win the confidence of the plaintiff and then takes advantage of it to deceive him.” Id. cmt. b.{33} The determination of whether a par-ty’s reliance on the other party’s represen-tations was justified “is fact-specific and includes consideration of the conduct of both parties.” Sisneros, 2006-NMCA-102, ¶ 22. Thus, we examine the record to see whether the evidence supports the district court’s finding of justifiable reliance. See Varbel v. Sandia Auto Elec., 1999-NMCA-112, ¶ 18, 128 N.M. 7, 988 P.2d 317 (“A finding of fraud normally requires proof by clear and convincing evidence.”). In doing so, we “view the evidence in the light most favorable to the prevailing party, and . . . determine therefrom if the mind of the fact[]finder could properly have reached an abiding conviction as to the truth of the fact or facts found.” Duke City Lumber Co., 1975-NMSC-041, ¶ 5.{34} Jones, Bair, and Schulhofer all testified that Appellant told them that the shareholders of NNMOC would be equal partners and that the shareholder employment agreements were the same with the exception of the termination and non-compete clauses. They testified that these representations were critical to

their decisions to become shareholders in NNMOC. Jones’s conversations with Appellant about the shareholder arrange-ments and the structure of the corporation had continued over months or years. Jones considered Appellant a mentor and friend. Schulhofer and Bair testified that Appel-lant did not tell them about the deferred compensation clause in his agreement even when they questioned him about the agreements. Bair testified that Appellant kept the corporate documents, including the shareholders’ agreements, in his pos-session, not at the NNMOC offices. And the practice manager for NNMOC testified that no corporate documents were kept at the NNMOC offices. Appellees first learned of the deferred compensation clause in Appellant’s agreement in early 2010. This evidence is sufficient to support the district court’s findings that Appellees justifiably relied on Appellant’s representa-tions about the shareholder agreements.{35} To the extent Appellant argues that, after becoming shareholders and officers of NNMOC, Appellees breached their duty to properly oversee NNMOC and that “their claims resulted in large part from their ongoing failure to meet their fiduciary duties[,]” we are unpersuaded. Appellant relies on NMSA 1978, § 53-11-35(B) (1987), which states that “[a] director shall perform his duties . . . in good faith, in a manner the director be-lieves to be in . . . the best interests of the corporation, and with such care as an or-dinarily prudent person would use under similar circumstances in a like position.” He maintains that “[h]aving steadfastly ignored their duties of care and oversight, . . . none of [Appellees] could establish justifiable reliance on [Appellant’s mis]representation or non-disclosure” after they became officers of NNMOC. But Appellant overlooks the remainder of Sec-tion 53-11-35(B)(1), which provides that “a director shall be entitled to rely on . . . reports or statements, including financial statements and other financial data, in each case prepared or presented by . . . officers . . . of the corporation whom the director reasonably believes to be reliable and competent in the matters presented[.]” Here, Appellant founded NNMOC and was its president and treasurer for ap-proximately nine years before Appellees became shareholders. When Bair joined in 2008, Appellant became its treasurer and secretary. Several witnesses testified that Appellant controlled NNMOC’s financial matters. Given this history, we conclude

that the evidence supports the district court’s findings that Appellees reasonably relied on Appellant’s representations and that these findings support the district court’s conclusion that “[Appellees] had no duty to audit or otherwise discover [Appellant’s] misdeeds.”{36} Finally, Appellant argues that Ap-pellees’ reliance on his representations was obviated by clauses stating that the written agreements supersede all other agreements and representations, including oral repre-sentations. For instance, the shareholder employment agreement states,

This Agreement constitutes the entire agreement and under-standing of the parties with respect to the subject matter hereof, and supersedes all prior oral or written agreements, ar-rangements, and understandings with respect thereto. No repre-sentation, promise, inducement, statement[,] or intention has been made by any party hereto that is not embodied herein, and no party shall be bound by or liable for any alleged representation, promise, inducement, or state-ment not so set forth herein.

{37} Appellant’s reliance on these clauses is misplaced because “in New Mexico exculpatory clauses do not preclude li-ability.” Golden Cone Concepts, Inc., 1991-NMSC-097, ¶ 6. A party fraudulently induced to enter into a contract “cannot be precluded from seeking redress by a provision inserted in the contract by the party perpetrating the fraud, designed to shut the mouth of the adverse party as to such fraudulent representations which led up to the making of the contract.” Id. (internal quotation marks and citation omitted) (holding that the district court correctly permitted the plaintiff to proceed on its fraud and misrepresentation claims when the contract included an exculpatory clause similar to that here). We conclude that the clauses referenced by Appellant do not present a barrier to Appellees’ suit or Appellant’s liability.B. Breach of Fiduciary Duty{38} Appellant argues that “the judgment based upon breach of fiduciary duty must be reversed” because the district court’s findings of a breach of fiduciary duties were based on Appellant’s failure to pay his share of overhead costs and the nega-tive value of his NNMOC shares, which, he maintains, are duties imposed by the shareholder employment agreement and



http://www.nmcompcomm.us/Advance Opinionsthe shareholder agreement, respectively. He argues that “breach of fiduciary duty claims cannot be based on contractual duties.”{39} Appellant’s argument is both factu-ally and legally flawed. First, the district court’s findings related to Appellant’s breach of fiduciary duties to Appellees and NNMOC are not based on Appellant’s fail-ure to pay overhead or the negative share value. Rather, the district court found that the fiduciary duty was breached when Appellant (1) failed to inform Appellees of “bonuses paid by him to him without appropriate basis”; (2) failed to inform Ap-pellees of “material facts and information relating to [NNMOC’s] business and fi-nancial affairs”; (3) “knowingly” submitted incorrect information about his bonuses to Appellees at shareholder meetings; (4) “knowingly and intentionally” paid him-self bonuses “to the substantial economic detriment of [Appellees] . . . as well as to [NNMOC] itself.” Thus, Appellant’s position that the breach of fiduciary duty findings are based only on contractually-imposed duties is not supported by the record.{40} Second, this Court has held that a breach of duties imposed by contract may also constitute a breach of the fiduciary duties of “loyalty, good faith, inherent fairness, and the obligation not to profit at the expense of the corporation.” See Walta v. Gallegos Law Firm, P.C., 2002-NMCA-015, ¶¶ 41, 46-47, 131 N.M. 544, 40 P.3d 449 (adopting the holding of Fought v. Morris, 543 So. 2d 167, 171 (Miss. 1989), and stating that “breach of [a] shareholder agreement could also be a breach of [a] fiduciary duty”). Although Appellant is correct in pointing out that not all breaches of a contract are necessarily breaches of a fiduciary duty, determination of “whether a breach of fiduciary duty has occurred will normally be a question of fact.” Walta, 2002-NMCA-015, ¶ 47. Since the district court resolved this question in favor of Appellees and Appellant challenges the district court’s findings, we examine the record for evidence supporting that deter-mination. See Bagwell v. Shady Grove Truck Stop, 1986-NMCA-013, ¶ 23, 104 N.M. 14, 715 P.2d 462 (stating that in reviewing a district court’s factual determination for substantial evidence, “[t]he appellate court . . . disregards all evidence and all infer-ences unfavorable to the [district] court’s result”).{41} We begin by defining “fiduciary duty.” “The duty between shareholders of

a close corporation is similar to that owed by directors, officers, and shareholders to the corporation itself; that is, loyalty, good faith, inherent fairness, and the obligation not to profit at the expense of the corpora-tion.” Walta, 2002-NMCA-015, ¶ 41. In other words, a fiduciary duty is “[a] duty of utmost good faith, trust, confidence, and candor owed by a fiduciary (such as a . . . corporate officer) to the beneficiary (such as a . . . shareholder)” and involves “a duty to act with the highest degree of honesty and loyalty toward another person and in the best interests of the other person (such as the duty that one partner owes to another).” Black’s Law Dictionary 581 (9th ed. 2009). “An act that is detrimental to the interests of someone to whom a fiduciary duty is owed[,] esp[ecially] an act that fur-thers the actor’s own interests” is a breach of loyalty. Id. at 214. The common thread between these statements is the idea that a fiduciary may not promote his interests above the interests of those to whom a duty is owed.{42} Based on this principle, we examine the record for evidence that Appellant advanced his interests at the expense of Appellees or NNMOC. Under the sub-stantial evidence standard, we “indulge[] all reasonable inferences in support of the prevailing party.” Las Cruces Prof ’l Fire Fighters v. City of Las Cruces, 1997-NMCA-044, ¶ 12, 123 N.M. 329, 940 P.2d 177. We conclude that the evidence supports the district court’s findings of breach.{43} Two witnesses testified about the amount overpaid to Appellant. NNMOC’s accountant conducted an audit of the compensation of shareholders. She dis-covered that the amount paid to Appellant was “off ” by “hundreds of thousands” of dollars. Edward Street, an expert in “ac-counting, business valuation, review and analysis of financial documents, and foren-sic accounting,” testified that he compared the amount of compensation due to Ap-pellant with the amount of compensation actually paid to determine if Appellant had been overpaid. Based on this analysis, he concluded that Appellant had been overpaid by $173,187.54 in 2007-2008, $199,233.83 in 2009, and $185,424.89 in 2010, for a total of $557,846.47, which was adjusted to $527,821.49. He also described the consequences of overpayment, stating, “if one of the doctors has been overpaid by several hundred thousand dollars, other doctors have to be underpaid by several hundred thousand dollars or the corpora-tion has to be negative, has to spend more

money than, in total, it has earned. . . . So if somebody is drawing more money than what is due them, it has to come from someplace else.”{44} In addition, the evidence supports the district court’s finding that Appellant was the only person calculating “bonus” payments to shareholders on the share-holder allocation sheets that the share-holders used to track their compensation. Several witnesses testified that Appellant was either in charge of or closely involved with the generation of the shareholder allocation sheets. NNMOC’s external accountant testified that she prepared the shareholder allocation sheets and gave them to Appellant. She stated that she would enter “the breakdown of the in-come and the allocation of the expenses” but not the bonuses on the draft allocation sheet and send the sheet to Appellant. She and NNMOC’s internal practice manager both testified that Appellant was their main point of contact for financial matters through early 2010. The internal practice manager never saw the allocation sheets prior to the litigation. Bair and Schul-hofer testified that Appellant brought a single copy of the shareholder allocation sheets to meetings with the shareholders approximately monthly and that Appel-lant would take the copy with him after the meetings. He stated that “none of [the Appellees] had any active role in the finances until . . . 2010” when Appellant stopped working at NNMOC. Schulhofer described Appellant as “controll[ing]” the shareholder allocation sheets. We conclude that this evidence supports the district court’s findings of breach of fiduciary duty based on Appellant’s over-compensation.{45} As to the findings of a breach of fi-duciary duty based on Appellant’s failure to inform Appellees of material facts related to NNMOC’s finances, such as his deferred compensation clause, we conclude that the evidence also supports these findings. Appellees testified about Appellant’s failure to inform them of the deferred compensa-tion clause in his shareholder employment agreement, as discussed above. Appellant’s deferred compensation clause would provide him with eighty percent of direct physician gross revenues and twenty per-cent of ancillary services revenue for three years, in contrast to Appellees’ deferred compensation clause, which provides them with only sixty percent of direct physician gross revenue for six months and no in-come based on ancillary services revenue.



http://www.nmcompcomm.us/Advance OpinionsJones’s testimony supports an inference that the effect of Appellant’s deferred com-pensation clause would be to reduce the amount of ancillary services revenue for NNMOC and the other shareholders, con-trary to what they understood when they signed the agreement. Schulhofer testified that having to pay Appellant according to his deferred compensation clause would be devastating to NNMOC, and possibly to him personally as well, stating that if the clause were valid “it[ would not be] in [his] interest to continue working. . . . So I would resign, which would mean, I as-sume, a bankruptcy for the business, and depending on the outcome of that, possibly a personal bankruptcy for myself to cover whatever liabilities we didn’t meet.” This evidence supports the district court’s find-ings to the effect that Appellant promoted his own interests to the detriment of Ap-pellees and NNMOC. We discern no error in the district court’s conclusions related to breach of fiduciary duty.C. Prima Facie Tort{46} Appellant argues that the district court erred in concluding that “[Ap-pellant] committed a prima facie tort against [Appellees] and [NNMOC].” Appellees concede that the facts on which the prima facie tort was based “duplicate [ Appellees’] fraud and breach of fiduciary duty claims” and appear to agree that the district court’s conclusion is, therefore, improper. We agree. See Guest v. Allstate Ins. Co., 2009-NMCA-037, ¶ 33, 145 N.M. 797, 205 P.3d 844 (“New Mexico appellate courts have held that where a plaintiff does not assert any separate factual basis to support its prima facie tort claim, and the plaintiff ’s proof is susceptible to sub-mission under another tort, the action should be submitted to the jury on the other cause of action and not as a prima facie tort claim”), aff ’d in part, rev’d in part, 2010-NMSC-047, 149 N.M. 74, 244 P.3d 342. In Appellees’ complaint, the only facts alleged in support of the prima facie tort claim were those “as set forth” in the fraud, securities fraud, breach of fiduciary duty, and breach of contract claims. No separate factual basis for the prima facie tort was established at trial. Thus, the district court’s conclusion as to prima facie tort must be reversed. See Bogle v. Summit Inv. Co., LLC, 2005-NMCA-024, ¶ 24, 137 N.M. 80, 107 P.3d 520 (holding that prima facie tort was not available when “existing causes of action provided reasonable avenues to a remedy for the asserted wrongful conduct”).

II. Damages{47} We turn now to Appellant’s argu-ments as to the damages awarded. Appel-lant argues that the amount of compen-satory damages should be reduced and that punitive damages were improperly awarded.A. Compensatory Damages{48} “Generally, we review findings regarding damages to determine wheth-er they are supported by substantial evidence.” Miller v. Bank of Am., N.A., 2014-NMCA-053, ¶ 28, 326 P.3d 20, cert. granted, 2014-NMCERT-005, 326 P.3d 1112. “Substantial evidence is that which a reasonable mind accepts as adequate to support a conclusion.” Id. (internal quota-tion marks and citation omitted). We ad-dress each of Appellant’s five arguments for reduction of the compensatory damages in the order presented.1. Overhead Expenses{49} As discussed above, each share-holder’s compensation consists of the sum of their direct physician gross revenues and ancillary services revenue less a por-tion of NNMOC’s overhead costs. Hence, each shareholder is responsible for his or her share of overhead expenses. Appellant argues that the compensatory damages award must be reduced by $154,655.55 because he ceased being a shareholder in January 2010, and thus he was no longer responsible for a portion of NNMOC’s overhead expenses. Although Appellant does not dispute that he submitted a let-ter of resignation in November 2010, he maintains that Appellees had agreed dur-ing negotiations over his leave of absence to make his termination date retroactive to January 2010 if he did not return to work after six months. Since he did not return to work, he contends that the January termination date should apply.{50} The district court found that Ap-pellant’s status as a shareholder was terminated on December 30, 2010, thirty days after Appellant submitted a letter of resignation, and that his shareholder status was terminated as of that date pursuant to paragraph 7.1(d) of the shareholder employment agreement. It also found that Appellant “never sought termination” during the leave of absence negotiations and that “[h]e did not terminate those negotiations, or terminate his employment as he sought advantage in the negotiation.” Hence, the district court implicitly rejected Appellant’s argument that the parties had agreed to a termination date of January 2010. Based on the finding of a termina-

tion date of December 2010, the district court found that Appellant “continued to be responsible for his share of overhead” until that date. Finally, the district court found that Appellant continued to receive a share of ancillary services revenue and other revenue from NNMOC during the leave of absence negotiations. Because Ap-pellant challenges each of these findings, we review the record to determine whether they are supported by substantial evidence. See Bagwell, 1986-NMCA-013, ¶ 23.{51} The heart of Appellant’s challenge to these findings is his contention that Appellees agreed to make his termina-tion date retroactive to January 2010 during the leave of absence negotiations. We therefore address that issue first. Bair testified that early in the negotiations Ap-pellees proposed a termination date that would be retroactive to the date the leave of absence began, rather than the date it ended. Bair also testified, however, that in the course of negotiations Appellees reversed this position and proposed that the termination date would not be retro-active. Finally, he testified that no agree-ment on the terms of Appellant’s leave of absence was ever reached. This testimony is supported by several exhibits admitted at trial, including (1) an email sent to Bair by Appellant in March 2010 in which Ap-pellant acknowledges that agreement on the terms of the leave of absence had not been reached and stating, “It may be best for me to resign”; (2) a letter sent on June 7, 2010, in which Bair informed Appel-lant that NNMOC still considered him an employee of the corporation and that he was still responsible for his share of overhead costs; and (3) an email exchange in which Appellant acknowledges that the terms related to his termination date had not been resolved as late as June 29, 2010. This evidence is sufficient to support the district court’s finding that the parties did not agree to a termination date in Janu-ary 2010. Furthermore, since Appellant’s only argument as to why the shareholder employment agreement’s termination provision does not apply to him is that he had been terminated in January 2010, we conclude that substantial evidence also supports the district court’s determination that that provision governed Appellant’s termination.{52} Turning to the district court’s de-termination that Appellant continued to receive income through December 2010 and was responsible for a portion of overhead expenses incurred during



http://www.nmcompcomm.us/Advance Opinionsthat time, we conclude that these find-ings are supported by the record. Edward Street, Appellees’ forensic accounting expert, testified that a portion of non-shareholder employee physician revenue and ancillary services revenue had been allocated to Appellant in 2010 and that Appellant had received a salary of over $30,000 in 2010. Street agreed with Ap-pellees’ counsel that these payments were pursuant to the shareholder employment agreement. He also agreed with counsel that “so long as [Appellant is] employed, he has to pay his share of the overhead.” Appellant’s shareholder employment agreement also requires that calculation of a shareholder’s compensation must incorporate each shareholder’s portion of overhead expenses. Thus, the terms of the shareholder employment agreement obliges shareholders to cover their por-tion of NNMOC’s overhead expenses. We conclude that there is substantial evidence in the record to support these findings.{53} To the extent that Appellant main-tains that the district court’s finding that he was terminated in December 2010 is incon-sistent with its finding that his share value should be determined as of January 2010, we disagree. The employment termination date is governed by paragraph 7 of the share-holder employment agreement, whereas the date of valuation of the shares is governed by paragraph 6 of the shareholder agree-ment. The shareholder agreement provides that “upon the occurrence of a [t]riggering [e]vent, the [c]orporation shall redeem the shares of stock owned by the [s]hareholder . . . upon the terms and for the purchase price set forth in [paragraph] 11.” Paragraph 6(D) provides that “in the case of the termi-nation of the [s]hareholder’s employment,” the “triggering event” shall be “the earlier to occur of (i) the date set forth in the [s]hare-holder’s resignation . . ., or (ii) the last day on which the [s]hareholder actually performs services for the [c]orporation.” The district court found that the “triggering event” here was the date that Appellant stopped provid-ing services, which is the earlier of the two options stated in paragraph 6(D). Thus, it treated the termination of employment as a condition antecedent to the triggering event, which is consistent with the plain language of paragraph 6(D). We discern no inconsistency in the district court’s findings as to the employment termination date and the date for valuation of Appellant’s shares.2. Inconsistent Accounting Treatment{54} Appellant next argues that the district court’s findings based on Street’s

calculations of the damages are erroneous because Street handled a certain transac-tion differently than the NNMOC board of directors did. Street testified that when Schulhofer became a shareholder, he paid $137,500 for his shares. One-third of this amount was allocated to each of the other shareholders (Appellant, Bair, and Jones) on the shareholder allocation sheets. When Street examined the NN-MOC financial records and calculated the amounts paid to shareholders, he noted that stock purchase payments should be treated as capital contributions to the cor-poration, rather than income to sharehold-ers. Accordingly, he reallocated $43,833.33 each from Appellant, Bair, and Jones to NNMOC. According to Street, this adjust-ment had the effect of reducing the amount NNMOC owed to Bair and Jones, whereas it increased the amount Appellant owed to NNMOC because he was already running a deficit. Street’s testimony supports the district court’s finding that reallocation of the stock purchase payment of $137,500 “is required by sound accounting practices and [principles.]”{55} Appellant also argues that, because all of the shareholders had agreed to treat the stock purchase payment as income years before Street examined NNMOC’s financial records, that treatment cannot “form the basis for a finding of breach of fiduciary duty” or breach of contract. After a careful review of the district court’s find-ings, we conclude there is no finding or conclusion by the district court indicating that it based its conclusions as to breach of contract or fiduciary duty specifically on the way these funds were treated. Thus, we need not address this contention further. 3. Responsibility for Dr. Wise’s

Negative Balance{56} Appellant’s third argument against Street’s calculations is that the district court erred in finding that “[Appellant] was responsible for, directed and/or in-tended the entries reflecting his absorp-tion of . . . Wise’s [who ceased being a shareholder at the end of 2008] negative running balance and [Appellant] should be estopped from repudiating that action.” Although the finding does not state the type of estoppel invoked, the language of the district court’s finding evinces a reliance on the doctrine of acquiescence, “a species of estoppel.” Scott v. Jordan, 1983-NMCA-022, ¶ 20, 99 N.M. 567, 661 P.2d 59. “[A]cquiescence arises where a person who knows that he is entitled to . . . enforce a right neglects to do so

for such a length of time that, under the circumstances of the case, the other party may fairly infer that he has waived or abandoned his right.” Id. (internal quotation marks and citation omitted). “Whether the defense of acquiescence has been established is a factual issue which must be decided under the facts existing in each case.” Id. ¶ 21.{57} Here, according to the shareholder agreement, Wise’s negative balance could have been borne by Appellant and Jones, who were the two shareholders at the time Wise left NNMOC. Thus, Appellant was not obligated to allocate the balance to himself. However, Appellees testified that the monthly shareholder allocation sheets, including the one reflecting Wise’s negative balance, were completed and/or brought to shareholder meetings by Appel-lant, and NNMOC’s accountant testified that although she provided drafts of the allocation sheets to Appellant, Appellant completed them. The allocation sheet in question was completed in early 2008, nearly two years before Appellant stopped working at NNMOC in January 2010, and nearly four years before trial. This evidence supports the district court’s finding that Appellant was responsible for the alloca-tion of Wise’s negative balance to himself and that he failed to correct any error for nearly four years.4. Improper Allocation of Jones’s

Revenue{58} Finally, Appellant argues that the compensatory damages award must be adjusted because revenue generated by Jones before he was a shareholder was improperly allocated to Jones by Street. He maintains that accounts receivable based on Jones’s work as a non-shareholder employee physician should have been al-located to Appellant and Wise, rather than credited to Jones as either direct physician gross revenue or non-shareholder employ-ee physician revenue. Appellant testified at trial that the effect of this adjustment would be a reduction of $75,303 in the amount Appellant owes in compensatory damages. Appellees argue that the amount allocated to Jones on the shareholder al-location sheets by Street had already been adjusted to exclude revenues generated by Jones before he was shareholder and, therefore, no further adjustment is neces-sary.{59} Under our standard of review of damages awards, we review the record and affirm the district court’s findings as to the treatment of revenue attributed to Jones



http://www.nmcompcomm.us/Advance Opinionsif there is substantial evidence to support them. See Miller, 2014-NMCA-053, ¶ 28 (stating that damages awards are reviewed for substantial evidence). The district court made only one finding of fact related to the allocation of revenues to Jones. That finding states,

When . . . Jones executed his [s]hareholder [e]mployment [a]greement, that [a]gree-ment superseded his prior [e]mployment [a]greement un-der the terms of his [s]hareholder [e]mployment [a]greement and he is entitled to his propor-tionate share of all [a]ncillary [s]ervices and [n]on-[s]hare-holder [p]hysician revenues, there being no limitation lan-guage in his [a]greement.

{60} This finding states only that Jones is entitled to a proportionate share of revenue from ancillary services and non-shareholder employee physician services. It does not address whether Jones was or was not credited with direct physician gross revenue generated before he was a shareholder. This finding is supported by the text of the shareholder employment agreement, in which we too find no lan-guage preventing the allocation of those revenues to Jones. See Maestas v. Martinez, 1988-NMCA-020, ¶ 15, 107 N.M. 91, 752 P.2d 1107 (“Where an issue to be deter-mined rests upon the interpretation of documentary evidence, an appellate court is in as good a position as the trial court to determine the facts and draw its own conclusions.”).{61} To the extent we might infer from the district court’s acceptance of Street’s testimony as to the total amount Appellant owes NNMOC that it found that the rev-enue allocated to Jones had already been adjusted to exclude revenue earned before he was a shareholder, we conclude that the evidence does not support such a finding, even viewed in the light most favorable to the judgment. See Weidler v. Big J Enters., Inc., 1998-NMCA-021, ¶ 30, 124 N.M. 591, 953 P.2d 1089 (“In reviewing a sufficiency of the evidence claim, this Court views the evidence in a light most favorable to the prevailing party and disregard[s] any inferences and evidence to the contrary.” (alteration in original) (internal quota-tion marks and citation omitted)). Street testified that NNMOC “may have made an adjustment” to exclude Jones’s non-share-holder employee revenue from Jones’s compensation. He based his statement that

such an adjustment may have been made on his review, apparently on the witness stand, of shareholder allocation sheets for the first six months that Jones was a share-holder. In this review, he noted that the revenue allocated to Jones in the first two months after becoming a shareholder was significantly less than that in the following four months, and stated that “there is indi-cation that the revenue reflected . . . may have been adjusted based on the amounts [for the first two months] compared to the subsequent [four months].” But Street also acknowledged that he “didn’t ask or didn’t test that” question as part of his analysis and that he “[didn’t] know if [NNMOC made] an adjustment.” This testimony is too speculative to amount to substantial evidence.{62} Nevertheless, we conclude that remand for recalculation is appropriate. Based on the district court’s finding that Jones is entitled to a portion of non-shareholder physician revenue, including that generated by him, we next examine the record for evidence indicating that amount and whether he was properly credited with it. The district court did not make an explicit finding as to the amount that should have been allocated to Jones and, as discussed above, we cannot infer that the amounts shown on the allocation sheets were adjusted properly. Confus-ingly, on the allocation sheets admitted at trial, on which both Appellant and Street relied, the revenues allocated to Jones are labeled as “direct physician revenue,” and there is no line item indicating how much revenue was attributed to Jones from his services rendered as a non-shareholder, although other non-shareholder physician revenues are identified by physician name. Given that there is no specific finding as to the correct amount of non-shareholder physician revenue that should have been allocated to Jones and that “[a]s an appel-late court, we will not originally determine the questions of fact[,]” we remand for calculation of the amounts attributable to Jones’s direct physician revenue and his portion of the non-shareholder physician revenue, including that generated by him prior to becoming a shareholder. Guidry v. Petty Concrete Co., 1967-NMSC-048, ¶ 13, 77 N.M. 531, 424 P.2d 806.5. Shareholder Approval of Bonuses{63} Appellant next challenges the district court’s finding that there was no “corrobo-rating evidence or testimony to support [Appellant’s] contention that [NNMOC] owed him any amount for loans, or that

the other [s]hareholders agreed to give him any bonus or other payment inconsistent with the . . . [s]hareholder [e]mployment [a]greement.” Jones testified that “[u]nder no circumstances other than those in the [shareholder e]mployment [a]greement have [the NNMOC shareholders] ever okayed any bonus for any partner.” Bair testified to the effect that bonuses were not given to shareholders just for doing a good job because “[t]hat’s not how the cor-poration was set up.” He also stated that he never discussed with Appellant any monies Appellant claimed were owed to him by NNMOC. Street testified that he did not find any “loans for capital contributions made in 2008 reflected on the financial statements for the year ended December 31, 2008, from [Appellant].” We conclude that the district court’s finding is supported by substantial evidence.B. Punitive Damages{64} Appellant argues that “because not even nominal damages were awarded on the fraud claims the punitive dam-ages award is erroneous.” See UJI 13-1827 NMRA (permitting a jury to award puni-tive damages “only if ” it finds the plaintiff “should recover compensatory [or nomi-nal] damages.” (alteration in original)). We are unpersuaded for two reasons: (1) punitive damages are appropriate when an actor willfully breaches fiduciary duties and Appellant’s acts in overpaying himself fit that category, and (2) Appellant’s argu-ment is based on the faulty premise that money damages are the only available remedies for fraud.{65} First, New Mexico does not require a finding of fraud in the classical sense to support a punitive damage award. See Akins v. United Steel Workers of Am., 2010-NMSC-031, ¶ 28 n.3, 148 N.M. 442, 237 P.3d 744 (allowing punitive damages for breach of duty of fair representation); Skeen v. Boyles, 2009-NMCA-080, ¶¶ 36-38, 146 N.M. 627, 213 P.3d 531 (allowing punitive damages for egregious breach of well-sharing agreement). And it is settled in New Mexico that punitive damages are available for breaches of fiduciary duties owed by and between shareholders in close corporations. Walta, 2002-NMCA-015, ¶¶ 55-58. The most salient question to be considered in any case in which punitive damages are requested is whether the actor acted with a culpable mental state. Id. ¶¶ 57-58.{66} Here, the district court made a num-ber of relevant factual findings concerning overpayments of bonuses to Appellant that



http://www.nmcompcomm.us/Advance OpinionsAppellant does not challenge. The district court found that Appellant maintained control of the financial aspects of NNMOC at least until the beginning of 2010. Thus, Appellant alone determined the bonuses to be paid to shareholders of NNMOC. His decisions were not subject to review by NNMOC’s external accountant because of limitations he placed on her. Appellant provided a single shareholder allocation sheet at meetings with the other share-holders, and the single sheet was always retrieved by Appellant after the meeting. The shareholder allocation sheets were not kept as part of the financial records of NN-MOC. Although the sheets were prepared in part by the NNMOC accountant, Appel-lant adjusted the entries to and sometimes changed the format of the sheets without input from her. These sheets were often inaccurate and misleading.{67} In 2008 and 2009 Appellant gave himself bonuses that were in excess of and not related to the amounts he had billed and collected from services provided. The excess bonuses totaled approximately $370,000 by the end of 2009. The bonuses were not approved by the other share-holders. In fact, the excess bonuses were not discovered until Appellees’ forensic accounting expert found them during the litigation.{68} It is reasonable to infer from those findings of fact that Appellant knowingly overpaid himself; that he used his control of corporate finances to do so; that he intentionally and successfully hid the over-payments from his fellow shareholders and NNMOC’s accountant; and that he was aware the overpayments were detrimental to the economic health of NNMOC and his fellow shareholders. The district court came to the same conclusion as evidenced by its findings and conclusions of law. The picture painted by the Appellant’s self-dealing with regard to his excess bonuses supports the district court’s conclusions that:

13. The actions of [Appellant] in regard to each of Jones, Bair[,] and Schulhofer after becoming shareholders in [NNMOC] constitute con-tinuing fraud by [Appellant] on each of them and [NN-MOC].

14. The actions of [Appellant] subsequent to Jones, Bair[,] and Schulhofer becoming shareholders in [NNMOC] constitute a breach of fidu-

ciary duty by [Appellant] to each of them and [NN-MOC].

. . . . 17. [Appellant’s] misrepresen-

tations to . . . Jones, Bair[,] and Schulhofer constitute knowing misrepresentations to them and [NNMOC].

. . . . 19. [Appellant] committed

fraud and continuing fraud against . . . Jones, Bair[,] and Schulhofer and [NNMOC].

20. [Appellant] breached his [f]iduciary duty to act with loyalty, utmost good faith, and inherent fairness to-wards his fellow sharehold-ers and [NNMOC].

. . . . 24. [NNMOC] is a close cor-

poration and the [s]hare-holders owe each other a fiduciary duty higher than the duty of good faith and fair dealing imposed on all contractual relationships, which fiduciary duty was breached by [Appellant].

25. The fiduciary duty between [s]hareholders of a close corporation to each other and to [NNMOC] is one of loyalty, good faith, . . . inherent fairness[,] and the obligation not to profit at the expense of [NNMOC], which fiduciary duty was breached by [Appellant].

These conclusions of law and their sup-porting factual findings obviously carry with them the culpable mental state required to support an award of punitive damages.{69} In addition, money damages are not the only remedy for fraud. Here, Appellees requested declaratory judgment as to the deferred compensation clause. Specifically, Appellees sought a statement that the de-ferred compensation clause in Appellant’s shareholder employment agreement has no effect to the extent that it differs from the deferred compensation clause in Appel-lees’ agreements. Thus, Appellees’ request was not so much for a declaration of their “rights, status[,] and other legal relations” but rather for modification of Appellant’s deferred compensation clause to match theirs. See NMSA 1978, § 44-6-2 (1975). We conclude that the remedy sought was

an equitable one. A declaratory judgment action may sound in either law or equity.

An action for a declaratory judg-ment is sui generis, and whether an action is to be treated as one at law or one in equity is to be determined by the nature of the dispute. . . . [D]eclaratory judg-ment actions, being statutory creatures, are neither inherently legal nor inherently equitable but may depend upon equitable con-siderations. The legal or equitable nature of a declaratory judgment proceeding is to be determined by the pleadings, the relief sought, and the nature of each case.

22A Am. Jur. 2d Declaratory Judgments § 2 (2004) (footnotes omitted). Because Appellees sought not to avoid the obliga-tions of Appellant’s agreement altogether but to make his agreement congruent with theirs, their request falls squarely within the definition of contract refor-mation, which is “[a]n equitable remedy by which a court will modify a written agreement to reflect the actual intent of the parties, usu[ally] to correct fraud or mutual mistake in the writing[.]” Black’s Law Dictionary 1394 (9th ed. 2009). Reformation is a remedy for fraud. See Chromo Mountain Ranch P’ship v. Gon-zales, 1984-NMSC-058, ¶¶ 6, 9, 101 N.M. 298, 681 P.2d 724 (stating that “reforma-tion is the proper remedy for constructive fraud regarding a land sale contract” and citing the Restatement (Second) of Con-tracts § 166 (1979)); Buck v. Mountain States Inv. Corp., 1966-NMSC-090, ¶ 7, 76 N.M. 261, 414 P.2d 491 (“[A] court of equity may grant reformation of a contract where . . . through mistake on the part of one party and fraud . . . on the part of the other party, the written instru-ment drafted to evidence a contract fails to express the real agreement and inten-tions of the parties.”); Pacheco v. Martinez, 1981-NMCA-116, ¶ 32, 97 N.M. 37, 636 P.2d 308 (stating that reformation is an equitable remedy); Restatement (Second) of Contracts § 166 (1981) (“If a party’s manifestation of assent is induced by the other party’s fraudulent misrepre-sentation as to the contents or effect of a writing evidencing . . . an agreement, the court . . . may reform the writing to express the terms of the agreement as as-serted . . . if the recipient was justified in relying on the misrepresentation[.]”). The district court granted Appellees’ request in the final judgment.



http://www.nmcompcomm.us/Advance Opinions{70} Having concluded that Appellees were granted equitable relief, we next ad-dress whether such relief may form the basis for an award of punitive damages and conclude that it can. In Madrid v. Marquez, Mr. and Mrs. Madrid, an elderly couple, agreed to transfer their home to their neighbor, Marquez, in exchange for his promise to care for them and to let them live in the home rent free for the rest of their lives. 2001-NMCA-087, ¶ 2, 131 N.M. 132, 33 P.3d 683. After Marquez obtained the deed to the Madrids’ home, he “began harassing, threatening, and intimidating the elderly and ill couple and ultimately attempted to force the Madrids from their home.” Id. After a bench trial, the district court ordered the deed rescinded or re-formed such that the Madrids would retain a life estate in the home with a remainder interest in Marquez. Id. ¶ 1. It also awarded $20,000 in punitive damages. Id.{71} On appeal, Marquez made the same argument that Appellant makes here, that “punitive damages cannot be recovered without recovery of compensatory or nominal damages.” Id. ¶ 3. While this Court agreed that “Marquez correctly state[d] the general law of New Mexico regarding punitive damages,” it neverthe-less held that “justice is better served by allowing the award of punitive damages in those equity cases where the conduct of the wrongdoer warrants [such] damages in order to deter clearly unacceptable be-havior.” Id. Under this so-called “modern approach . . . [r]equiring an award of com-pensatory damages as a prerequisite to an award for punitive damages is a technical rule that should not be applied blindly[.]” Id. ¶ 8. Noting that the purpose of the rule requiring compensatory or nominal damages “is that it first insures that some legally protected interest has been invaded [and] prevents the assessment of punitive

damages against one who may have caused damage without legal injury[,]” this Court held that “[t]here is no reason why an award of equitable relief may not fulfill this same function[.]” Id. (internal quotation marks and citation omitted). Thus, where “[a] plaintiff [has] establish[ed] a cause of action in equity and the wrongdoer’s misconduct [is] willful, wanton, malicious, reckless, . . . or fraudulent and in bad faith” punitive damages are allowable to “do[] complete justice.” Id. (internal quotation marks and citation omitted).{72} Here, in awarding the equitable remedy of modification of Appellant’s deferred compensation clause, the district court acknowledged the legal injury to Appellees due to Appellant’s fraudulent misrepresentation. The next inquiry is whether the evidence supports the dis-trict court’s findings that Appellant had a culpable state of mind related to the fraud, which Appellant challenges. In addition to the evidence discussed above related to Appellees’ reliance on Appellant’s rep-resentations, the evidence supports an inference that Appellant not only knew about, but actively engineered a better deferred compensation clause for himself than for the other shareholders. For in-stance, there were several email exchanges in September 2007 between Appellant and the NNMOC attorney, who was also Appellant’s personal attorney, in which the attorney highlighted the differences between Appellant’s shareholder employ-ment agreement and Jones’s agreement. The fact that Appellant told Bair that he did not intend to enforce the deferred compensation clause, but included it in his agreement in case Appellees formed a different company without him indicates that he was aware of the differences in the agreements at the time they were drafted. The evidence also supports an inference

that Appellant acted to hide the differences in the deferred compensation clauses from Appellees. For example, although Schul-hofer and Bair asked Appellant about the terms of the agreements, Appellant did not tell them about the deferred compensation clause in his agreement. Several people testified that Appellant kept the corporate documents, including the shareholders’ agreements, in his possession and that no corporate documents were kept at the NNMOC offices. This evidence is sufficient to support the district court’s findings to the effect that Appellant knowingly and intentionally misled Appellees about the shareholder employment agreements.{73} We conclude that, under Madrid, the equitable remedy provides an independent basis supporting the award of punitive damages. The final judgment acknowl-edged that Appellees established a cause of action in equity and the evidence sup-ports a finding of a culpable state of mind. Together, these elements are sufficient to support an award of punitive damages. See id. Consequently, we affirm on this issue.CONCLUSION{74} We affirm the district court’s judg-ment with two exceptions. For the reasons stated above, the finding of a prima facie tort is reversed. As to the amount of com-pensatory damages due to NNMOC, we affirm the district court’s findings as to calculations of the damages in all respects except for the calculation and allocation of non-shareholder employee revenue generated by Jones before he became an NNMOC shareholder. We remand for recalculation of this amount.{75} IT IS SO ORDERED.

MICHAEL D. BUSTAMANTE, Judge

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



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Certiorari Denied, January 14, 2015, No. 34, 964



LISA A. BURCIAGA SEGURA, Plaintiff-Appellee,

v.TERRY A. VAN DIEN and NINA A. LAUERMAN,

Defendants-AppellantsDocket No. 32,656 (filed October 7, 2014)

APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY MATTHEW J. SANDOVAL, District Judge

STEVEN L. TUCKERTUCKER LAW FIRM, P.C.Santa Fe, New Mexico

for Appellee

NANCY ANN RICHARDSLas Vegas, New Mexico

for Appellants

Opinion

M. Monica Zamora, Judge{1} Terry Van Dien and Nina Lauerman (Defendants) appeal a judgment granting Lisa Burciaga Segura (Plaintiff) an ease-ment to use a common driveway over their property. In this appeal, we must determine whether an unrecorded oral permissive easement gives rise to an easement by pre-scription after the prescriptive period. Fol-lowing the Restatement (Third) of Property, we hold that prescriptive use may be either adverse use or use pursuant to the terms of an intended but imperfectly created ease-ment, or the enjoyment of the benefit of an intended but imperfectly created easement. Restatement (Third) of Prop.: Servitudes § 2.16 (2000). Applying this holding to the facts of this case, we affirm.BACKGROUND{2} In 1996, Plaintiff and her then hus-band (collectively the Seguras) purchased an undeveloped tract of land (Tract B-1) on which they planned to build a house. Shortly after the Seguras purchased Tract B-1, Richard and Janine Duncan (the Duncans) purchased an adjacent tract (Tract B-2) for the same purpose. At that time, neither tract had a house nor a driveway on it. Both tracts were set back from State Road 94 and had limited access to the road. The Seguras and the Duncans agreed to build a single common driveway to serve both tracts. They did so, agreeing on the location of the driveway and shar-

ing the costs of building it. The driveway provided access to both the Seguras’ and the Duncans’ residences and it was used for that purpose continuously until 1999. Then the couples agreed to realign the driveway, again splitting the expense. The realigned driveway was used by the Seguras and the Duncans to access their respective properties until 2006. Though the couples intended to reduce their agree-ment to writing, they never did, nor did they record Plaintiff ’s easement over the property.{3} In 2006, the Duncans sold Tract B-2 to Defendants. The deed did not mention the easement, however, the realigned drive-way giving access to Tracts B-1 and B-2 remained in continuous use by Plaintiff and Defendants. The relationship between Plaintiff and Defendants deteriorated. In 2010, Mr. Van Dien wrote Plaintiff a letter announcing that he would be closing the common driveway. Defendants attempted to exclude Plaintiff from the use of the driveway and, according to Plaintiff, Mr. Van Dien also threatened and harassed Plaintiff and her children. Plaintiff sued and was granted a preliminary injunction, enjoining Defendants from interfering with her use of the driveway and from threatening or harassing Plaintiff and her children. Both parties moved for summary judgment. The motions were denied and after a non-jury trial, the district court entered a judgment in favor of Plaintiff, granting her a prescriptive easement over the driveway. This appeal followed.

DISCUSSION{4} On appeal, Defendants argue that the district court erred in denying their motion for summary judgment and in granting Plaintiff a prescriptive easement where Plaintiff failed to show adverse use of the driveway. Plaintiff contends that her agreement with the Duncans to build and share the driveway in 1996 created an unrecorded easement that ripened into a prescriptive easement over what is now Defendants’ property. This case was submitted to the district court based on stipulated facts. Thus, resolution of the parties’ dispute over Plaintiff ’s right to use the driveway depends on whether the intended but imperfect easement created by her agreement with the Duncans gives rise to a prescriptive easement. This is a le-gal issue that we review de novo. Amethyst Land Co. v. Terhune, 2014-NMSC-015, ¶ 9, 326 P.3d 12.{5} We have not found any New Mexico case to have addressed this precise issue. For authoritative guidance on the law pertaining to easements, we look to the Restatement (Third) of Property: Servi-tudes. E.g., City of Rio Rancho v. Amrep Sw. Inc., 2011-NMSC-037, ¶ 33, 150 N.M. 428, 260 P.3d 414; Algermissen v. Sutin, 2003-NMSC-001, ¶¶10-11, 133 N.M. 50, 61 P.3d 176; Cox v. Hanlen, 1998-NMCA-015, ¶ 15, 124 N.M. 529, 953 P.2d 294; Cunningham v. Otero Cnty. Elec. Coop., Inc., 1992-NMCA-116, ¶ 15, 114 N.M. 739, 845 P.2d 833.{6} According to the Restatement, a ser-vitude is created by a prescriptive use of land where the prescriptive use is open or notorious and continued without effective interruption for the prescriptive period. Restatement (Third) of Prop.: Servitudes § 2.17 (2000). A prescriptive use of land is defined as either:

(1) a use that is adverse to the owner of the land or the interest in land against which the servi-tude is claimed, or (2) a use that is made pursuant to the terms of an intended but imperfectly created servitude, or the enjoyment of the benefit of an intended but imperfectly created servitude.

Restatement (Third) of Prop.: Servitudes § 2.16, at 221-2.{7} Our Supreme Court adopted the Restatement’s first definition of prescrip-tive use in Algermissen: “[W]e follow the example of the recently published Restate-ment (Third) of Property: Servitudes . . . . According to this model, an easement by



http://www.nmcompcomm.us/Advance Opinionsprescription is created by an adverse use of land, that is open or notorious, and continued without effective interruption for the prescriptive period (of ten years).” Algermissen, 2003-NMSC-001, ¶ 10. Here, Plaintiff urges us to adopt the Restate-ment’s second definition of prescriptive use, which arises from an intended but imperfectly created easement or servitude.{8} This approach uses prescription to perform a title-curing function where “people try to create a servitude but fail, initially because they do not fully articulate their intent or reduce their agreement to writing, or because they fail to comply with some other formal requirement imposed in the jurisdiction.” Restatement (Third) of Prop.: Servitudes § 2.16 cmt. a, at 222. In these situations, if the parties “act as though they have been successful in creating the servitude, and continue to do so for the prescriptive period,” a servitude may be created by prescription if the other requirements (open and con-tinuous use) are met. Restatement (Third) of Prop.: Servitudes § 2.16 cmt. a, at 222. By observing the terms of the intended servitude for the prescriptive period, the parties demonstrate the “existence and terms of the servitude and resolve[ ] any doubts as to [their] intent that may have been created by their failure to comply with the formality.” Restatement (Third) of Prop.: Servitudes § 2.16 cmt. a, at 222.{9} Although an easement by prescription without adversity was not included in the Restatement until 2000, it “has always been present in American servitudes law[.]” Restatement (Third) of Prop.: Servitudes § 2.16 cmt. a, at 222. Some jurisdictions have expressly recognized an exception to the adversity rule. See, e.g., Clinger v. Hartshorn, 89 P.3d 462, 466 (Colo. App. 2003) (“An easement by prescription is ac-quired when the use is open or notorious, continuous without effective interruption for an eighteen-year period, and either

adverse or pursuant to an attempted but ineffective grant.”); Walker v. Hollinger, 968 P.2d 661, 665 (Idaho 1998) (stating that prescriptive use can be established where the use is adverse or by a claim of right); Nat’l Props. Corp. v. Polk Cnty., 386 N.W.2d 98, 105 (Iowa 1986) (“[W]e have modified the [adversity] requirements to establish an easement by prescription in those instances in which the original en-try upon the lands of another is under an oral agreement or express consent of the servient owner and the party claiming the easement expends substantial money or la-bor to promote the claimed use in reliance upon the consent or as consideration for the agreement.” (internal quotation marks and citation omitted)).{10} Other jurisdictions, as well as some commentators, focus on statute-of-limitations theory and categorize uses made pursuant to oral grants and other in-tended but imperfectly created servitudes as hostile or adverse. Restatement (Third) of Prop.: Servitudes § 2.16 cmt. a, at 222; see also Kirby v. Hook, 701 A.2d 397, 404 (Md. 1997) (holding that use based on an ineffective oral grant of easement was adverse, not permissive); James W. Ely, Jr. and Jon W. Bruce, The Law of Easements & Licenses in Land, available at Westlaw LELL § 5:10 (“[U]se of land under an in-valid grant of an express easement does not negate its adverse character because such usage does not depend on the landowner’s sufferance.”).{11} The rationale behind this approach is that “the use derogates from the owner’s title, or that the use is adverse because it can be made wrongful by revocation of the license created by the imperfect servitude.” Restatement (Third) of Prop.: Servitudes § 2.16 cmt. a, at 222. “To avoid these con-voluted explanations and the errors that follow literal applications of the terms ‘adverse’ and ‘hostile,’ [the Restatement] adopts a definition of prescriptive uses

that straightforwardly recognizes the two types of uses that can lead to prescriptive rights”[:] adversity and an attempted but ineffective grant. Restatement (Third) of Prop.: Servitudes § 2.16 cmt. a, at 223. We agree with the Restatement’s rationale and we follow it here.{12} It is undisputed that the Seguras and the Duncans, together, built a common driveway for the benefit of both Tract B-1 and B-2; they agreed on the location of the driveway and shared the expense of its construction. It is also undisputed that the Duncans intended to grant Plaintiff an easement over the common driveway, but that they ultimately failed to reduce their agreement to writing. Applying the Restatement’s principles to this situation we conclude that Plaintiff ’s use of the com-mon driveway was pursuant to an intended but imperfectly created easement and thus, constitutes prescriptive use.{13} To the extent that Defendants argue that the district court’s findings of fact are insufficient to support its conclusions because the findings do not include a start date for the prescriptive period, we disagree. It is uncontroverted that Plaintiff openly used the common driveway from its inception in 1996 until the ten year period ran. This establishes that Plaintiff ’s prescriptive use of the driveway was open, notorious, and continuous for the ten-year prescriptive period. As a result, we conclude that the district court did not err in granting Plaintiff an easement by prescription over the common driveway.CONCLUSION{14} For the foregoing reasons we affirm.{15} IT IS SO ORDERED.

M. MONICA ZAMORA, Judge

WE CONCUR:MICHAEL E. VIGIL, JudgeTIMOTHY L. GARCIA, Judge



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

Certiorari Denied, January 14, 2015, No. 35,026



DR. NATHAN E. BOYD ESTATE, by JAMES SCOTT BOYD, Personal Representative, and JAMES SCOTT BOYD, Individually,

Plaintiffs-Appellants,v.

UNITED STATES, ELEPHANT BUTTE IRRIGATION DISTRICT, and CITY OF LAS CRUCES,

Defendants-AppelleesDocket No. 32,119 (filed October 15, 2014)

APPEAL FROM THE DISTRICT COURT OF DONA AÑA COUNTYJAMES J. WECHSLER, Presiding Judge

ROBERT S. SIMONAlbuquerque, NM

for Appellants

KENNETH J. GONZALESUnited States AttorneyRUTH FUESS KEEGAN

Assistant United States AttorneyAlbuquerque, New Mexico

IGNACIA S. MORENOAssistant Attorney General

MATTHEW LITTLETONAttorney Appellate Section

ENVIRONMENT AND NATURAL RESOURCE DIVISION,

U.S. DEPARTMENT OF JUSTICEWashington, D.C.

for Appellee United States

STEVEN L. HERNANDEZLAW OFFICE OF

STEVEN L. HERNANDEZ, P.C.Las Cruces, New Mexico

for Appellee Elephant Butte Irrigation District

JAY F. STEINSETH R. FULLERTON

STEIN & BROCKMANN, P.A.Santa Fe, New Mexico

HARRY “PETE” CONNELLYMARCIA DRIGGERS

CITY OF LAS CRUCESLas Cruces, New Mexico

for Appellee City of Las Cruces

Opinion

M. Monica Zamora, Judge{1} James Scott Boyd, in his individual capacity, and as representative for the Es-tate of Dr. Nathan E. Boyd (Boyd) appeals from the district court’s order dismissing his claims to water rights in the Lower Rio Grande adjudication area. Boyd was permitted to intervene in ongoing water rights adjudication proceedings in the district court. The district court dismissed Boyd’s claims on the grounds that Boyd failed to assert a cognizable claim to water rights, and that Boyd’s claims were barred by the principles of res judicata. We af-firm.

I. BACKGROUND{2} Boyd’s claimed water rights stem from activities of his predecessor in inter-est, the Rio Grande Dam and Irrigation Company (the Company) over a century ago. In 1891, an Act of Congress (the 1891 Act) granted rights of way through public lands to irrigation companies. See Act of March 3, 1891, ch. 561, 26 Stat. 1101. The Company was formed in 1893 to build a network of dams, canals, and reservoirs for irrigation of the area surrounding the Low-er Rio Grande. See Boyd v. United States, No. 96-476L, slip op. at 2 (Fed. Cl. Apr. 21, 1997). In 1895, the Company received permits from the Secretary of the Interior and began work on the irrigation project. To help finance an irrigation project along

the Rio Grande, the Dam and Irrigation and Land Company Limited (the English Company) was created, and in 1896, the Company leased all of its rights in the project to the English Company. Id. The English Company also acquired control of all of the Company’s stock. The English Company later transferred all rights and interests in the Company to Dr. Nathan Boyd.{3} Also in 1896, the Secretary of the Interior issued a suspension order or embargo suspending work on the irriga-tion project. The United States sought to enjoin the Company from completing the irrigation project and was granted a temporary injunction. Id. at 3. After a hearing, the injunction was dissolved and the suit was dismissed. Id. The Supreme Court of the Territory of New Mexico af-firmed the dismissal, however, the United States Supreme Court reversed and re-manded the case to the district court for a determination regarding the irrigation project’s impact of the navigability of the Rio Grande. United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 695-96, 710 (1899).{4} The district court determined that completion of the irrigation project would not substantially diminish the navigabil-ity of the Rio Grande and dismissed the United States’ complaint. The United States appealed to the Supreme Court of the Ter-ritory of New Mexico, which affirmed the dismissal and remanded the case back to the district court for additional hearings. United States v. Rio Grande Dam & Irriga-tion Co., 1900-NMSC-042, ¶ 15, 10 N.M. 617, 65 P. 276, rev’d, 184 U.S. 416, 425.{5} The United States supplemented its complaint in the district court, alleging that the Company had forfeited its inter-est in the irrigation project because the project had not been completed within the five-year time frame set forth in Section 20 of the 1891 Act. The Company failed to respond to the supplemental complaint and the district court entered a default judgment, finding that the Company had forfeited its rights to complete the project and permanently enjoined the Company from attempting to complete the project. United States v. Rio Grande Dam & Irriga-tion Co., 1906-NMSC-013, ¶ 3, 13 N.M. 386, 85 P. 393, aff ’d sub nom. Rio Grande Dam & Irrigation Co. v. United States, 215 U.S. 266 (1909). The forfeiture was af-firmed by both the Supreme Court of the Territory of New Mexico and the United States Supreme Court. Rio Grande Dam &



http://www.nmcompcomm.us/Advance OpinionsIrrigation Co., 1906-NMSC-013, ¶ 47; Rio Grande Dam & Irrigation Co., 215 U.S. at 278.{6} Despite the passage of many years, the English Company and Boyd continued to pursue related claims, including an ac-tion in the United States Court of Federal Claims. See Boyd, No. 96-476L, slip op. at 5. In that case, Boyd alleged that the United States’ control over irrigation works that began as part of the Company’s irrigation project constituted a taking of his property and sought just compensation and puni-tive damages. Id. Boyd also alleged fraud. Id. The court held that Boyd’s taking claims were barred by the statute of limitations and that it did not have jurisdiction as to the fraud claims. Id. at 8, 10. {7} Most recently Boyd intervened in ongoing water rights adjudication pro-ceedings before the Third Judicial District Court of New Mexico. That adjudication involved water rights to the Lower Rio Grande Stream System, to which the United States of America, the Elephant Butte Irrigation District (EBID), the City of Las Cruces, and the State of New Mexico Office of the State Engineer were all parties. The district court issued an order commencing an expedited inter se proceeding to determine Boyd’s claims. The order directed Boyd to file a state-ment of claim, describing in detail all of the water rights claimed in the Lower Rio Grande adjudication area. For each water right claimed, Boyd was to specify “the elements of the water right including[:] the priority date, source of water, purpose of use, place of use, point of diversion, loca-tion and amount of irrigated acreage, the amount of water claimed and the bases for the elements of the claimed water right(s).”{8} After Boyd filed his statement of claims, the United States and EBID moved to dismiss Boyd’s claims pursuant to Rules 1-012(B)(1), (6) NMRA. The City of Las Cruces also moved to dismiss, alleging that Boyd had failed to comply with the re-quirements of the district court’s case man-agement order and with the requirements for a decree as described in NMSA 1978, Section 72-4-19 (1907). The district court granted the motions to dismiss, finding that Boyd had failed to state a claim upon which relief could be granted and that his claims were barred by the principles of res judicata. This appeal followed.II. DISCUSSION{9} As a preliminary matter, we note that Boyd’s arguments regarding his claimed water rights are interwoven with discus-

sion of the water rights of other “Claim-ants.” However, the district court’s order on appeal in this case pertains only to claims brought by Boyd. Accordingly, we do not address Boyd’s arguments related to the water rights claims of other parties.{10} Boyd makes a number of arguments in support of reversal. His arguments cen-ter on the assertion that the federal gov-ernment seized irrigation infrastructures, rights-of-way, and water rights from his predecessor in interest in the early 1900s. Because our review is limited to the district court’s decision to dismiss Boyd’s claims based on (1) Boyd’s failure to state a claim upon which relief can be granted; and (2) principles of res judicata, we only consider Boyd’s arguments related to those issues.A. Failure to State a Claim1. Standard of Review{11} “A district court’s decision to dismiss a case for failure to state a claim under Rule 1-012(B)(6) is reviewed de novo.” Valdez v. State, 2002-NMSC-028, ¶ 4, 132 N.M. 667, 54 P.3d 71. “A Rule [1-0]12([B])(6) motion is only proper when it appears that plaintiff can neither recover nor obtain relief under any state of facts provable under the claim.” Id. (internal quotation marks and citation omitted). “In review-ing a district court’s decision to dismiss for failure to state a claim, we accept as true all well-pleaded factual allegations in the complaint and resolve all doubts in favor of the complaint’s sufficiency.” Nass-Romero v. Visa U.S.A. Inc., 2012-NMCA-058, ¶ 6, 279 P.3d 772 (internal quotation marks and citation omitted).2. Boyd’s Claims to Water Rights{12} Boyd argues that the district court erred in finding that he failed to state a cognizable claim to an existing water right. We disagree. The purpose of water rights adjudication in New Mexico is to determine existing water rights. See N.M. Const. art. XVI, § 1 (“All existing rights to the use of any waters in this state for any useful or beneficial purpose are hereby recognized and confirmed.”); see also State ex rel. Reynolds v. Pecos Valley Artesian Conservancy Dist., 1983-NMSC-044, ¶ 2, 99 N.M. 699, 663 P.2d 358 (“The object of an adjudication suit is to determine all claims to the use of the water in a given stream system.”). {13} To establish an existing water right, a claimant must demonstrate his intent to appropriate the water and he must show that he has actually diverted the water and applied it to beneficial use. See State ex rel. Reynolds v. Miranda, 1972-NMSC-003, ¶

9, 83 N.M. 443, 493 P.2d 409 (holding that “man-made diversion, together with intent to apply water to beneficial use and actual application of the water to beneficial use, is necessary to claim water rights by ap-propriation in New Mexico”); see also Snow v. Abalos, 1914-NMSC-022, ¶ 12, 18 N.M. 681, 140 P. 1044 (holding that the continu-ing right to divert and utilize water must be preceded by “[t]he intention to apply to beneficial use, the diversion works, and the actual diversion of the water”); Carangelo v. Albuquerque-Bernalillo Cnty. Water Util. Auth., 2014-NMCA-032, ¶ 43, 320 P.3d 492 (“There must be an ultimate, actual beneficial use of the water resulting from the diversion.” (internal quotation marks and citation omitted)), cert. denied by Carangelo v. N.M. State Eng’r, 2014-NM-CERT-002, 322 P.3d 1062.{14} Boyd’s claims, which are based on the Company’s initial work on the ir-rigation project in 1896, cannot serve as the basis for existing water rights. Boyd acknowledges that he is not currently diverting or using the water to which he claims rights and that neither he nor the Company has diverted or distrib-uted irrigation water for more than one hundred years. Boyd also acknowledges that the district court entered a decree of forfeiture as to the Company’s rights to its irrigation project and water rights which was affirmed by both the Supreme Court of the Territory of New Mexico and the Supreme Court of the United States in 1909. See Rio Grande Dam & Irrigation Co., 1906-NMSC-013, ¶ 47; Rio Grande Dam & Irrigation Co., 215 U.S. at 277. Nonetheless, Boyd argues that his claimed rights remain intact because governmental interference prevented the Company from completing the project and fully developing its water rights. We are not persuaded.{15} Boyd’s argument relies primarily on what he calls the Mendenhall doctrine, referring to State ex rel. Reynolds v. Men-denhall, 1961-NMSC-083, 68 N.M. 467, 362 P.2d 998. Boyd contends that, under Mendenhall, water rights cannot be for-feited for non-use where certain circum-stances prevent the owner from perfecting those rights. We find Boyd’s reliance on Mendenhall misplaced.{16} In Mendenhall, a landowner drilled a well and used the water supply to irrigate crops. Id. ¶ 3. Shortly before the landowner completed construction of the irrigation works, the State Engineer declared the lands to be part of the Roswell Artesian Basin. Id. ¶¶ 1-3. A statutory suit for



http://www.nmcompcomm.us/Advance Opinionsadjudication of rights to water in the basin was filed. Id. ¶ 3. The district court found that the landowner had not acquired a valid right to irrigate because the irrigation works were not complete at the time the waters were declared as part of the Basin. Id. ¶ 4. Our Supreme Court held that the landowner, who lawfully initiated devel-opment of his water right and diligently carried it to completion, did acquire a valid water right with a priority date as of the beginning of his work, notwithstanding the fact that the lands involved were put into the declared basin before work was completed and water put to beneficial use. Id. ¶ 29.{17} The present case is distinguishable from Mendenhall because here, the Com-pany, by failing to answer the United States’ supplemental complaint before the district court in 1903, forfeited its water rights and did not diligently carry out its project to completion.B. Boyd’s Claims of Fraud and

Conspiracy{18} Boyd denies that his water rights were forfeited or abandoned. He asserts that the United States government and the Company’s attorneys entered into a conspiracy to fraudulently “void” the Company’s water rights. According to Boyd, the “U.S.’s Attorneys” conspired with the Company’s attorneys to file a supple-mental complaint in the initial navigation litigation, which the Company’s attorneys purposely failed to answer. As a result, the district court entered the default judgment in favor of the United States and ordered the forfeiture of the Company’s water rights. Boyd contends that because the forfeiture action was the direct result of conspiracy and fraud by the United States and the Company’s attorneys, it is invalid. We are not persuaded.{19} Our review of the record reveals that one of the Company’s attorneys may have suggested a legal strategy to the U.S. Attorney for forfeiture of the Company’s water rights. Subsequently, the Company’s attorneys failed to answer the United States’ supplemental complaint for for-feiture and as a result, the district court entered a decree declaring the Company’s water rights to be forfeited. These facts—by themselves—do not establish a conspiracy between the United States and the Com-pany’s attorneys to commit fraud. See Cain v. Champion Window Co. of Albuquerque, LLC, 2007-NMCA-085, ¶ 28, 142 N.M. 209, 164 P.3d 90 (explaining the three ele-ments of conspiracy: “(1) that a conspiracy

between two or more individuals existed, (2) that specific wrongful acts were carried out by [the d]efendants pursuant to the conspiracy, and (3) that [the p]laintiffs were damaged as a result of such acts” (alterations, internal quotation marks and citation omitted)); see also State ex rel. Peterson v. Aramark Corr. Servs., LLC, 2014-NMCA-036, ¶ 39, 321 P.3d 128 (stat-ing that the elements of fraud are “that the other party (1) made a misrepresentation of fact . . . (2) with the intent to deceive and to induce the injured party to act upon it, (3) and upon which the injured party ac-tually and detrimentally relies” (omission in original) (internal quotation marks and citation omitted)).{20} If a fraud was indeed perpetrated, it was a fraud on the Company by its own attorneys, the remedy for which would not be for this Court to reverse the Third Judicial District’s 1903 decree of forfeiture as Boyd suggests. Rather, the Company could have brought an action against its attorneys for malpractice. See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 396 (1993) (stating that “clients must be held accountable for the acts and omissions of their attorneys”); see also Resolution Trust Corp. v. Ferri, 1995-NMSC-055, ¶ 17, 120 N.M. 320, 901 P.2d 738 (stating that the “remedy for attorney failure lies in malpractice suit.”). To the extent that Boyd alleges fraud against the United States, the Federal Tort Claims Act “provides the exclusive remedy for tort actions against the federal government[.]” Rehoboth McKinley Christian Healthcare Servs., Inc. v. U.S. Dep’t of Health & Human Servs., 853 F. Supp. 2d 1107,1112 (D.N.M. 2012) (internal quotation marks and cita-tion omitted). Accordingly, Boyd does not have a cause of action for fraud against the United States in state court. We conclude that Boyd’s claims of conspiracy and fraud are irrelevant and are unsupported by the record.C. Res Judicata{21} The doctrine of claim preclusion, or “res judicata is founded on principles of fairness and justice.” Kirby v. Guardian Life Ins. Co. of Am., 2010-NMSC-014, ¶ 61, 148 N.M. 106, 231 P.3d 87 (emphasis omit-ted). It “ensures finality, advances judicial economy, and avoids piecemeal litigation.” Bank of Santa Fe v. Marcy Plaza Assocs., 2002-NMCA-014, ¶ 14, 131 N.M. 537, 40 P.3d 442. “The principle of claim preclu-sion precludes a claim when there has been a full and fair opportunity to litigate issues arising out of that claim.” Tunis v. Country

Club Estates Homeowners Ass’n, Inc., 2014-NMCA-025, ¶ 19, 318 P.3d 713 (internal quotation marks and citation omitted), cert. denied, 2014-NMCERT-001, 321 P.3d 936. Res judicata applies if four elements are met: “(1) the parties must be the same, (2) the cause of action must be the same, (3) there must have been a final decision in the first suit, and (4) the first decision must have been on the merits.” Id. ¶ 20 (internal quotation marks and citation omitted). “Whether the elements of claim preclusion are satisfied is a legal question, which we review de novo.” Id. (internal quotation marks and citation omitted).{22} In this case, the forfeiture action was litigated extensively in the Third Judicial District Court, the Supreme Court of the Territory of New Mexico and in the United States Supreme Court. See Rio Grande Dam & Irrigation Co., 215 U.S. 266; see also United States v. Rio Grande Dam & Irrigation Co., 1906-NMSC-013. Boyd also litigated a taking claim in the Federal Court of Claims. Boyd, No. 96-476L, slip op. at 5.{23} In light of these prior decisions, the district court found that res judicata applied because: (1) the parties did not dispute that the first element had been met (that the parties in all the suits were the same); (2) the cause of action in the earlier decisions was the same, stemming from the Company’s initial claims irriga-tion project and related water rights; (3) the prior decisions were final because the initial forfeiture was a final order of the district court, as it was subsequently affirmed by the Territory of New Mexico Supreme Court and Boyd was denied post-judgment relief; and (4) the prior decisions were on the merits of Boyd’s claims be-cause both appellate courts evaluated the merits of the forfeiture and ruled on that basis. We agree with the district court’s reasoning with respect to the second, third and fourth elements.{24} The critical issue before this court is the first res judicata element. Boyd asserts that, in its order to dismiss, the district court incorrectly stated that the parties did not dispute that this element had been met. According to Boyd, he has continually alleged that because Dr. Boyd himself was not a party to the forfeiture proceedings, the first element of res judicata is not satis-fied. He reiterates that argument on appeal.{25} “Res judicata prevents a party or its privies from repeatedly suing another for the same cause of action.” Deflon v. Saw-yers, 2006-NMSC-025, ¶ 2, 139 N.M. 637,



http://www.nmcompcomm.us/Advance Opinions137 P.3d 577. Because Dr. Boyd was not a named party in the previous litigation, we must determine whether he was in privity with the Company, which was a party to the litigation.

There is no definition of “priv-ity” which can be automatically applied in all cases involving the doctrines of res judicata and col-lateral estoppel. Thus, each case must be carefully examined to determine whether the circum-stances require its application. This is so, notwithstanding the general assumption that res judi-cata applies only if the parties in the instant action were the same and identical parties in the prior action resulting in a judgment.

Privity requires, at a minimum, a substantial identity between the issues in controversy and show-ing that the parties in the two ac-tions are really and substantially in interest the same.

Id. ¶ 4 (internal quotation marks and cita-tion omitted). Privity may exist where the parties have a “concurrent relationship to the same property right” or a “successive relationship to the same property or right.” Id. (internal quotation marks and citations omitted).{26} In the present case, Boyd asserts that the Company transferred its interests in the irrigation project to the English Company, which in turn transferred the same interests to Dr. Boyd. Boyd’s claims necessarily depend on his assertion that he

is successor in interest to the water rights of the Company. This puts him in privity with the Company and accordingly, for the purposes of res judicata, he is considered the same party. Therefore, we conclude that all four elements of res judicata are met and that Boyd’s claims are precluded as a result.III. CONCLUSION{27} For the foregoing reasons, we affirm the decision of the district court.{28} IT IS SO ORDERED.

M. MONICA ZAMORA, Judge

WE CONCUR:MICHAEL D. BUSTAMANTE, JudgeJ. MILES HANISEE, Judge



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ClassifiedPositions

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

Associate AttorneyWhitener Law Firm, P.A. is currently seek-ing a full-time associate attorney to handle Personal Injury cases. Candidates must be highly motivated, client oriented and will enjoy working in a fast-paced environment. Candidates must be licensed to practice in the state of New Mexico. Salary competi-tive and commensurate to experience and qualifications. Please send resume to Nichole Henry, Whitener Law Firm, P.A., 4110 Cut-ler Avenue, N.E., Albuquerque, NM 87110, fax to 505-242-3322 or e-mail to [email protected]

13th Judicial District AttorneySenior Trial Attorney, Assistant Trial Attorney, Associate Trial AttorneyCibola, Sandoval, Valencia CountiesSenior Trial Attorney - This position requires substantial knowledge and experience in crimi-nal prosecution, rules of criminal procedure and rules of evidence, as well as the ability to handle a full-time complex felony caseload. Admission to the New Mexico State Bar and a minimum of five years as a practicing attorney are also required. Assistant Trial Attorney - The 13th Judicial District Attorney’s Office is accepting applications for an entry to mid level attorney to fill the positions of Assistant Trial Attorney. This position requires misdemeanor and felony case-load experience. Associate Trial Attorney - an entry level position for Cibola (Grants), Sandoval (Bernalillo) or Valencia (Belen) County Offices. The position requires misdemeanor, juvenile and possible felony cases. Upon request, be prepared to provide a summary of cases tried. Salary for each position is commensurate with experience. Send resumes to Kathleen Colley, District Office Manager, PO Box 1750, Bernalillo, NM 87004, or via E-Mail to: [email protected]. Deadline for submission of resumes: Open until positions are filled.

Staff AttorneyPresbyterian Healthcare Services is seeking a full time attorney to provide legal support on a broad range of employment legal issues with a focus on compliance with federal and state law to provide legal support in prepar-ing submittals to federal and state agencies, providing legal support in negotiation of provider employment agreements, and for HR decisions and personnel actions. Juris Doctor degree and NM license to practice law and a minimum of 3-5 years of experience and a strong background in employment – either law or HR is required, with clear and concise writing ability. Experience in health-care and physician employment and contract matters strongly desired. Please visit our website www.phs.org, click on careers, and apply to job requisition 54501. We provide a comprehensive salary and benefit package. We are an equal opportunity employer and all qualified applicants will receive consider-ation for employment without regard to race, color, age, religion, gender, national origin, sexual orientation, gender identity, marital status, disability, protected veteran status, or any other characteristic protected by law. Presbyterian Healthcare Services is a drug-free and tobacco-free employer with smoke free campuses.

Associate AttorneyBusy law firm practicing in the areas of Family Law, Worker’s Compensation and Personal Injury seeking Associate Attorney to immediately join our growing firm. At-torney will primarily practice in the area of Family Law and will be responsible for legal analysis, representation, document preparation, mediations and litigation. Sal-ary will be consistent with experience. Please submit cover letter and resume to [email protected]. No phone calls.

Part Time AssociateGuglielmo & Associates, PLLC, a well-established multi-state law firm focusing on creditor rights, is currently seeking an associ-ate attorney in its Albuquerque office for short term temporary position (June thru August). Candidates must hold NM license to practice law in good standing. Must pass drug and credit check. Candidate must be available to prepare legal briefs, pleadings, appeals, and trial preparation. Candidate must be avail-able for pre-trial, motion hearings, and trial. Please email resume and writing sample to [email protected].

Associate AttorneyMoody & Warner, P.C. seeks a mid- to senior- level associate attorney. The firm represents plaintiffs and defendants in employment matters (including class actions, trials, arbi-trations, and appeals). Litigation experience (plaintiff or defense) is a must. Knowledge of labor or employment law is preferred. Ben-efits, competitive pay, and bonus eligibility. Please mail or email resume to Moody & Warner, P.C., 4169 Montgomery Blvd, NE, Albuquerque, NM 87109, attention Connie Roybal or email [email protected]. All inquiries will be kept confidential.

Default Litigation AttorneyWe are seeking an experienced Default Litiga-tion Attorney with a strong work ethic and who wants to work in conjunction with our on-site attorney and support staff in our Al-buquerque office. You would be responsible for the accurate and timely management of a portfolio of cases in various stages of the foreclosure and bankruptcy processes. Other duties include preparing for and attending hearings and mediations, either in person or telephonically, and maintaining case records and time records for client billing purposes. You must be licensed in New Mexico and in good standing, and have at least eight years Creditors Default experience including foreclosure, evictions and/or bankruptcies. You possess the ability to handle high case load and attend Court. We offer a highly competitive employee benefits program including Medical, Dental, Vision, LTD, 401(k) plan, PTO and holiday pay. We also pay your CLE and bar renewal costs. Please reply with your resume and salary require-ments to [email protected]. You must be able to pass pre-employment drug screen and criminal background check.

Deputy District AttorneyDeputy District Attorney wanted for imme-diate employment with the Seventh Judicial District Attorney’s Office, which includes Catron, Sierra, Socorro and Torrance coun-ties. Employment will based primarily in Sierra County (Truth or Consequences). Must have a minimum of 6 years criminal law experience, including 2 years of supervi-sion/administration experience, and must be willing to relocate within 6 months of hire. Salary will be based on the NM District At-torneys’ Personnel & Compensation Plan and commensurate with experience and budget availability. Send resume to: Seventh District Attorney’s Office, Attention: J.B. Mauldin, P.O. Box 1099, 302 Park Street, Socorro, New Mexico 87801.

http://www.phs.org







Part-time CourierPart-time Courier 12-5 PM, five days a week for downtown law firm. Position also includes front desk coverage, scanning of closed files, mail, and other duties as directed. Parking provided. Please submit resume or letter of interest to [email protected].

Request for ApplicationsCity of Albuquerque Paralegal PositionsA Paralegal position is available within the Litigation Division of the Legal Depart-ment of the City of Albuquerque. Position Summary: Paralegal with a civil litigation background who has the skills, knowledge, and ability to assist attorneys in civil litiga-tion practice, including from the inception of a civil lawsuit through trial. Minimum education and experience requirements: Associates Degree in Paralegal Studies, plus three (3) years’ experience as a paralegal; or a Certificate in Paralegal Studies, plus five (5) years’ experience as a Legal Secretary/Assistant. To Apply: All applicants must submit, by May 1, 2015, a City Application. Resumes will not be accepted in lieu of the application. An On-Line Application Pro-cess can be accessed at web site www.cabq.gov/jobs. Applications are also available at the City of Albuquerque Human Resources Department 400 Marquette NW 7th Floor Suite 703. Albuquerque NM 87103. Copies of required certifications, registrations, and/or licenses, if not attached on-line, must be provided at the time of interview

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

Part-time Billing ClerkPart-time Billing Clerk for downtown law firm. Experience with TABS preferred, and electronic billing a plus. Flexible hours. Good income for second job. Only those with law firm billing experience should apply. Please submit resume to [email protected].

New Mexico Association of Counties ParalegalNon-profit local governmental association is seeking an experienced full-time paralegal to join a new litigation team in our Albuquerque office. Successful candidates will be proficient in both state and federal court practice. Du-ties will include review and organization of documents, preparation of pleadings and subpoenas, file management, exhibit organization, calendaring, and research. Experience with Microsoft Word, Outlook, Excel and timekeeping software preferred. Excellent benefits package and working en-vironment. Email resume and references by COB Wednesday, May 6, 2015 to [email protected].

Associate AttorneyImmediate availability for associate in small real estate law firm. Practice includes trans-actional and litigation matters. NM license + 3 yrs minimum experience required. Position requires advanced grammar, proof reading skills, and computer acumen. The firm’s fast pace requires mastery level organi-zational skills, ability to critically think and work independently. Inquiries confidential. Email resume w/ complete work experi-ence, references, writing sample and salary requirements to [email protected] for consideration.

Paralegal/Nurse Paralegal:Personal injury law firm with office in Santa Fe is seeking a paralegal for its litigation practice. Candidates should have a strong background in the use of Microsoft Excel and Word as well as experience reviewing medical records. A nursing background is also a plus, and prior litigation experience is not necessary. Position will be full-time and will begin in May. All inquiries will be kept confidential. Please email resume to [email protected].

Victim Advocate Position -1st Judicial District AttorneyThe First Judicial District Attorney’s Of-fice has an immediate opening available for a Victim Advocate to provide services to victims and witnesses of crime. This is a mid-level Victim Advocate position, 2 to 5 years experience required. Applicant must be fluent in Spanish. Salary is based on the District Attorney Personnel and Compensa-tion Plan. Please send resume and letter of interest to: “Victim Advocate Employment”, co; PSchwartz, PO Box 2041, Santa Fe, NM 87504, or via e-mail to [email protected].

Independent CounselThe Albuquerque Police Oversight Board is seeking a contract Independent Counsel to advise and represent the POB. Must be NM Bar member with experience in civil rights, police misconduct cases, criminal law, contract law, municipal regulations, Open Meetings Act/IPRA and union contracts. Contract thru June 30, 2015 with possible extension to June 2016. Submit letter of inter-est and CV by May 1st to Beth A. Mohr, POB Personnel Subcommittee Chair, at [email protected].

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

Associate AttorneyBleus & Associates, LLC is presently seeking to fill (2) Associate Attorney Positions for its growing Uptown Albuquerque Office. Appli-cants should possess a minimum of (3) years cilvil litigation experience. Trial experience preferred. Areas of practice will include all aspects of civil litigation with an emphasis on Personal Injury; Insurance Bad Faith; and Tort Matters. Salary D.O.E. Please forward CV to Hiring Partner, 2633 Dakota, NE; Albuquerque NM 87110. [email protected]. All inquiries will remain confidential

ParalegalParalegal wanted for Plaintiffs civil litigation firm. Growing uptown firm seeks a full time experienced paralegal that is well organized; detail oriented, and has the ability to work independently. Candidate must have prior experience in civil litigation with an empha-sis in personal injury. 3+ years experience preferred. Salary commensurate with ex-perience. Please forward resume to: Hiring Partner, Bleus & Assoc. LLC, 2633 Dakota, NE, Albuquerque, NM 87110 or email attn. Tony at bleuslawhotmail.com.

Senior Trial Prosecutor/ Assistant District Attorney The 12th Judicial District Attorney is seeking a prosecutor for the Alamogordo and the Carrizozo office. Experienced preferred, but will train the right candidate. Salary DOE. Position may be HIDTA funded. Please send resume and cover letter via email to [email protected] or [email protected]. We are an EOE.

Summer Law ClerksFT, needed for reputable law firm represent-ing numerous large, nationwide banking/ser-vice clients in full range of creditor's rights. Must be able to multi task in a high volume, fast paced office. Excellent work environ-ment in new offices at the Journal Center and great opportunity for experience and growth. Submit in cover letter, resume, salary history & requirements to [email protected].

http://www.cabq











Services

Available for Research and Writing AssignmentsAttorney with 7 years appellate court ex-perience available for research and writing assignments. Reliable and thorough: motions, briefs, research. Email [email protected] or call 505-715-6566 or 505-281-9293.

Office Space

Taos Conference and Office SpaceTaos conference and office space available for depositions and mediations. Call Robyn 575-758-1225

Office Available for RentOne office available for rent, including sec-retarial area, at 2040 4th St. NW (I-40 & 4th St.), ABQ. Rent includes receptionist, use of conference rooms, high speed internet, phone system, free parking for staff and clients, use of copy machine, fax machine and employee lounge. Contact Jerry or George at 505-243-6721 or [email protected]

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

What’s included in your office rent? Plaza500 at 201 3rd Street NW offers ready to go offices that include covered parking space, VoiP phone and internet, free Wi-Fi, meeting room hours, 100 B&W copies per month included, coffee and water service, professional reception service, 24-hour se-cure access, utilities and janitorial services. Drop by or contact Sandee at 505-999-1726/[email protected] to make an ap-pointment to tour the suite in downtown’s premier class-A building.

Last Will and Testamentof Emily J. ShepherdLooking for a Last Will and Testament of Emily J. Shepherd. If you have the original or a copy of her Will, or know of who may have it, please contact Gerald E. Bischoff at 2040 4th Street NW, Albuquerque, NM 87102, 505-243-6721, immediately. Emily died on February 2, 2013.

Miscellaneous

Legal Asst/Paralegal Avail for Contract AssignmentCourt E-File, Scan, E-mail, Court Proce-dures, Discovery. Reliable & Professional [email protected]

SUBMISSION DEADLINESAll advertising must be submitted via Email 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.

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

or email [email protected]

Visit the State Bar of New Mexico’s website

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Henrietta Pettijohn Awards Reception Honoring The Honorable Martha Vázquez

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Please rsvp to [email protected] by May 1, 2015.You may also contact Amelia Nelson at (505) 866-4529

SILENT AUCTION featuring gift cards, wine and cheese basket, crafts, jewelry and more. All proceeds from the silent auction fund the WBA Scholarship Program benefiting UNM School of Law Students. Please feel free to donate a Silent Auction item!

SPONSORSHIP LEVEL includes 10 tickets for $450 with a reserved table. Individual tickets available.

TICKETS $45 for WBA Members, $60 for non-members, and $25 for students.


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Tatiana D. Engelmann attorney at law

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Attorney at Law • Retired Chief District Court Judge(505) 321-4549 • [email protected]

TED C. BACA

601 Calle del Pajarito N.W., Albuquerque, New Mexico 87114

Frank A. BacaAttorney at Law

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Retired Chief District Court Judge

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Frank A. BacaAttorney at Law

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April 22, 2015 • Volume 54, No. 162015 Health Law Legislative Update Presented by Morris “Mo”...

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Transcript of April 22, 2015 • Volume 54, No. 162015 Health Law Legislative Update Presented by Morris “Mo”...