Sambrano v. Savage

Sprague Lake by Dan Stouffer (see page 3) Weems Art Gallery, Albuquerque

Inside This Issue

January 7, 2015 • Volume 54, No. 1

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

First Judicial District Court:.................................. 4 Announcement of Vacancy Investiture of Hon. David K. Thomson

Bernalillo County Metropolitan Court: Investiture of Hon. Jill M. Martinez ..................... 4

U.S. District Court, District of New Mexico ...... 4 Magistrate Judge Position (full time) Magistrate Judge Position (part time)

Paralegal Division CLE: “Ethics for Paralegals: The Basics and Beyond” ......................................... 5

Solo and Small Firm Section Presentation with U.S. Attorney Damon Martinez .................. 5

Volunteers Needed at Jan. 13 Veterans Legal Clinic .............................................. 6

From the New Mexico Court of Appeals

2014-NMCA-112, No. 32,059: Rainaldi v. City of Albuquerque .....................13

2014-NMCA-113, No. 32,924: Sambrano v. Savage Arms, Inc. ......................18

2014-NMCA-114, No. 32,199: Martin v. Comcast Cablevision Corporation of California, LLC .....................21

2014-NMCA-115, No. 32,674: Spoon v. Mata ....................................................24

2 Bar Bulletin - January 7, 2015 - Volume 54, No. 1

Your 2015 State Bar licensing fees and certifications are due now and must be paid by

Feb. 1, 2015, to avoid late fees.

Complete your annual licensing requirements at www.nmbar.org.

Payment by credit and debit card* and e-check are available.

If you have any questions, please call 505-797-6083 or email [email protected].

*Online payment by credit and debit card will incur a service charge.

State Bar of New Mexico2015 Licensing

Notification

http://www.nmbar.org

mailto:[email protected]

Bar Bulletin - January 7, 2015 - Volume 54, No. 1 3

Notices ................................................................................................................................................................4Legal Education Calendar .............................................................................................................................7Writs of Certiorari ............................................................................................................................................9Court of Appeals Opinions List ................................................................................................................. 11Recent Rule-Making Activity ..................................................................................................................... 12Opinions

From the New Mexico Court of Appeals2014-NMCA-112, No. 32,059: Rainaldi v. City of Albuquerque ............................................ 13

2014-NMCA-113, No. 32,924: Sambrano v. Savage Arms, Inc. ............................................. 18

2014-NMCA-114, No. 32,199: Martin v. Comcast Cablevision Corporation of California, LLC ............................................ 21

2014-NMCA-115, No. 32,674: Spoon v. Mata ............................................................................. 24

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

State Bar Workshops January

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

7 Civil Legal Fair 10 a.m.–1 p.m., Second Judicial District Court, Third Floor Conference Room, Albuquerque

13 Legal Resources for the Elderly Workshop 9:30–10:30 a.m., Presentation noon–3 p.m., Clinics Mary Ether Gonzales Senior Center, Santa Fe

13 Veterans Civil Legal Advice Clinic 9 a.m.–noon, New Mexico Veterans Memorial, Albuquerque

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

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

Meetings January

8 Employment and Labor Law Section BOD, Noon, State Bar Center

8 Business Law Section BOD, 4 p.m., via teleconference

8 Elder Law Section BOD, Noon, State Bar Center

8 Public Law Section BOD, Noon, Montgomery and Andrews, Santa Fe

9 Animal Law Section BOD, Noon, State Bar Center

9 Prosecutors Section BOD, Noon, State Bar Center

14 Children’s Law Section BOD, Noon, Juvenile Justice Center

14 Criminal Law Section BOD, Noon, Kelley & Boone

Cover Artist: Dan Stouffer paints strictly in transparent watercolor, the medium with which he feels can best capture the depth, distance and detail of the Southwestern and Western landscape he loves. He has a close connection to the land, and hopes his work contributes to its preservation.

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 EditorsJamshid Askar Bruce HerrNicole L. Banks Maureen S. MooreAlex Cotoia Andrew SefzikKristin J. Dalton Mark StandridgeCurtis Hayes

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

January 7, 2015, Vol. 54, No. 1









NoticesProfessionalism TipCourt news

New Mexico Commission on Access to JusticeMeeting Notice The next meeting of the New Mexico Commission on Access to Justice is from 11:30 a.m.–4 p.m., Jan. 9, at the State Bar Center. Interested parties from the private bar and the public are welcome to attend. More information about the Commission is available at www.nmbar.org.

First Judicial District CourtAnnouncement of Vacancy A vacancy on the First Judicial District Court exists in Santa Fe as of Jan. 1 due to the non-retention of Hon. Sheri A. Raphaelson. Inquiries regarding the details or assignment of this judicial vacancy should be directed to the chief judge or the administrator of the court. David Herring, chair of the Judicial Nominating Commission, solicits ap-plications for this position from lawyers who meet the statutory qualifications in Article VI, Section 14 of the New Mexico Constitution. Applications may be obtained from the Judicial Selection website: http://lawschool.unm.edu/judsel/application.php. The deadline for applications is 5 p.m., Jan. 20. Applicants seeking information regarding election or retention if appointed should contact the Bureau of Elections in the office of the Secretary of State. The Judicial Nominat-ing Commission will meet at 9 a.m., Jan. 29, at the Judge Steve Herrera Judicial Complex, 224 Montezuma Ave., Santa Fe, to evaluate the applicants. The Com-mission meeting is open to the public and members of the public who want to be heard about any of the candidates will have an opportunity to do so.

Investiture of Hon. David K. Thomson The First Judicial District Court invites the legal community to the investiture ceremony for Hon. David K. Thomson at 4 p.m., Jan. 9, at the Steve Herrera Judicial Complex, 225 Montezuma Ave., Santa Fe. A reception will immediately follow the ceremony.

Fifth Judicial District CourtMass Reassignment Effective Dec. 4, a mass reassignment of cases occurred pursuant to NMSC Rule 23-109. Judge Raymond Romero, Division

I, Eddy County was assigned all pending cases with case types child support, child support enforcement and parentage in which the child support enforcement division is a party. Pursuant to Supreme Court Rule 1-088.1, parties who have not yet exercised a peremptory excusal will have 10 days from Jan. 7 to excuse Judge Romero.

Eleventh Judicial District CourtNotice of Mass Reassignment (San Juan County) Under the authority of Rule 23-109 NMRA, the Chief Judge of the 11th Judicial District Court directed a mass reassignment of criminal cases effective Jan. 2 from Division I, formerly presided over by Judge William C. Birdsall, to Division VIII, Karen L. Townsend, pre-siding judge. This is a mass reassignment of criminal cases only. All other case types currently assigned to Division I will remain in Division I unless individu-ally reassigned. Pursuant to Rule 5-106 NMRA, parties who have not yet exer-cised a peremptory excusal in a criminal case being reassigned in this mass reas-signment will have 10 business days from Jan. 28 to excuse Judge Townsend.

13th Judicial District CourtInvestiture Ceremony for Hon. Cheryl H. Johnston The Judges and employees of the 13th Judicial District Court invite all to attend the investiture ceremony of Hon. Cheryl H. Johnston, Division VIII, Sandoval County. The ceremony will take place at 3:30 p.m., Jan. 9, at the Sandoval County District Courthouse, 2nd floor, courtroom 2013. For more information, contact Ter-ecina Marquez at 505-865-4291, ext. 2104.

Bernalillo County Metropolitan CourtInvestiture of Hon. Jill M. Martinez The Judges and employees of the Bernalillo County Metropolitan Court invite members of the legal community

and the public to attend the investiture cer-emony of Hon. Jill M. Martinez, Division VIII. The ceremony will be held at 5:15 p.m. on Jan. 14 in the Bernalillo County Metropolitan Court Rotunda. Judges who want to participate in the ceremony should bring their robes and report to the first floor viewing room by 5 p.m.

Nominees The Metropolitan Court Judicial Nominating Committee convened, Dec. 18, 2014, in Albuquerque and completed its evaluation of the eight applicants for the vacancy on the Bernalillo County Metropolitan Court. The Committee rec-ommends the following three applicants (in alphabetical order) to Gov. Susana Martinez:

R. John Duran, IIJason R. GreenleeNicole W. Moss

U.S. District Court for the District of New MexicoMagistrate Judge Position (Full Time) The Judicial Conference of the U.S. has authorized the appointment of a full-time U.S. Magistrate Judge for the District of New Mexico at Albuquerque. The current annual salary of the position is $185,012. The term of office is eight years. A full public notice and application forms for the U.S. Magistrate Judge position are posted in the Clerk’s Office of the U.S. District Court at all federal courthouses in New Mexico, and on the Court’s website, www.nmcourt.fed.us. Application forms may also be obtained from the intake counter at all federal courthouses in New Mexico or by calling 575-528-1439. Ap-plications must be received by Jan. 16. All applications will be kept confidential.

Magistrate Judge Position (Part Time) The Judicial Conference of the U.S. has authorized the appointment of a part-time U.S. Magistrate Judge for the District of New Mexico at Roswell. The current annual salary of the position is $46,134. The term of office is four years.

With respect to my clients:

I will counsel my client that initiating or engaging in settlement discussions is consistent with zealous and effective representation.


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

http://www.nmcourt.fed.us


A full public notice for this position and the application form may be obtained from the intake counter at all federal courthouse locations in New Mexico, by calling 575-528-1439, or by visiting the court’s website at www.nmcourt.fed.us. Applications must be received by Jan. 23. All applications will be kept confidential, unless the applicant consents to disclo-sure.

state Bar newsAttorney Support Groups• Jan. 12, 5:30 p.m. UNM School of Law, 1117 Stanford

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

• Feb. 2, 5:30 p.m. First United Methodist Church, 4th

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

• Feb. 16, 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 Bill Stratvert, 505-242-6845.

Committee on Women and the Legal ProfessionFinancial Literacy Program A new year is a great opportunity to get personal financial affairs in order. Join Renée Gwyther, MBA and CFP of Gwyther & Holt Investment Advisors, and Devona L. Benavidez, financial advisor at Morgan Stanley, for a semi-nar geared toward personal financial planning for women. Organized by the Committee on Women and the Legal Profession, the free seminar will give an overview of credit, debt management, investment, saving and planning for retirement. This is a great opportunity to learn about financial planning for the future. R.S.V.P. to Zoe Lees, [email protected], by Jan. 13. All are welcome.

Reception for the Justice Pamela B. Minzner Outstanding Advocacy for Women Award Join the State Bar Committee on Wom-en and the Legal Profession in presenting the 2014 Justice Pamela B. Minzner Outstanding Advocacy for Women Award to attorney Jane Rowe for her outstanding advocacy for women in conjunction with Saranam, an Albuquerque non-profit providing housing and education services

to families transitioning out of homeless-ness. The award reception will be held 5:30–8:30 p.m., Jan. 29, at Hotel Andaluz in Albuquerque. Hors d’oeuvres will be provided by the Committee and a cash bar will be available. R.S.V.P. to Evann Kleinschmidt at [email protected].

Paralegal DivisionLuncheon CLE Series The Paralegal Division invites mem-bers of the legal community to bring a lunch and attend “Ethics for Paralegals: The Basics and Beyond” (1.0 EP, pend-ing MCLE approval) presented by Hon. Beatrice Brickhouse, of the Second Judicial District Court. The program will be held from noon–1 p.m., Jan. 14, at the State Bar Center (registration fee for attorneys–$16, members of the Paralegal Division–$10, non-members–$15). Reg-istration begins at the door at 11:45 a.m. For more information, contact Cheryl Passalaqua, 505-247-0411, or Carolyn Winton, 888-4357. Telecast to three loca-tions: • Santa Fe: Montgomery & Andrews,

325 Paseo de Peralta, Santa Fe. Contact Donna Ormerod, 505-570-4593.

• Roswell: Atwood, Malone, Turner & Sabin, 400 N. Pennsylvania, Ste. 1100. Contact Tomma Shumate, 575-622-6221.

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

Solo and Small Firm SectionLunch Meeting and Presentation The Solo and Small Firm Section welcomes members to its monthly board meetings at 11:30 a.m. at the State Bar Center, followed by a speaker at noon. On Jan. 20, U.S. Attorney Damon Martinez will present “Priorities of the New U.S. Attorney.” R.S.V.P. to Evann Kleinschmidt, [email protected], by Jan. 19 to guarantee lunch. Mark your calendars now for the Solo and Small Firm Section’s exciting line up of speakers for the spring. All members of the bench and bar are welcome to the free noontime lunch presentations, the third Tuesday of the month, at the State Bar Center. • Feb. 17: Judge Harris Hartz of the 10th

Circuit Court of Appeals• March 17: Tara Neda

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/JLAP/JLAP.html

Fastcase is a free member service that includes cases, statutes, regulations, court rules, constitutions, and free live training

webinars. Visit www.fastcase.com/webinars to view current offerings. Reference

attorneys will provide assistance from 8 a.m.–8 p.m. ET, M–F.

For more information, contact Jorge Jimenez, [email protected] or

505-797-6018.

Member BenefitF e a t u r e d

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

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

Santa Fe, NM 87504-0848

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

address Changes

http://www.fastcase.com/webinars


mailto:@nmcourts.gov



http://www.nmcourt.fed.us


http://www.nmbar.org/JLAP/JLAP.html


Young Lawyers DivisionVolunteers Needed at Veterans Legal Clinic (New Location) The Young Lawyers Division and the New Mexico Veterans Affairs Health Care System are holding clinics for the Veterans Civil Justice Legal Initiative from 9 a.m.–noon, the second Tuesday of each month at the New Mexico Veterans Memorial, 1100 Louisiana Blvd. SE, Albuquerque. Breakfast and orientation for volunteers begin at 8:30 a.m. No special training or certification required. Volunteers can give advice and counsel in their preferred practice area(s). The next clinic is Jan. 13. To volunteer, contact Keya Koul, [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 ClosedClosure Jan. 19: Martin Luther King Jr. Day

other BarsAlbuquerque Bar AssociationMonthly Membership Luncheon The Albuquerque Bar Association’s Membership Luncheon will be held at noon, Jan. 13, at the Embassy Suites Hotel in Albuquerque. Join the Association at 11:30 a.m. for networking. New Mexico Board of Bar Examiners Chair Howard Thomas and Executive Director Carol Skiba will present “Admission on Motion in New Mexico,” a discussion of the adop-tion of a process for reciprocal admission by motion by the New Mexico Supreme Court. From 1:15–2:15 p.m., Judge David Thuma, Judge Jim Starzynski, Paul Fish and Nathalie Martin will present “What Every Lawyer Needs to Know: Bankruptcy” (2.0 G). Register at www.abqbar.org.

Albuquerque Lawyers ClubMonthly Lunch Meeting The Albuquerque Lawyers Club in-vites members of the legal community to its January lunch meeting. Damon P. Martinez, U.S. attorney for the District of New Mexico, is the featured speaker. The lunch meeting will be held at noon, Jan. 7, 2015, at Seasons Restaurant in Albuquerque. Cost: free to members, $30 for non-members. For more information, email [email protected] or call 505-844-3558.

Federal Bar Association, El Paso ChapterBorder Law Conference The El Paso Chapter of the Federal Bar Association presents the Border Law Conference on Jan. 30–31, at the Tomás Rivera Conference Center at the University of Texas at El Paso. The course addresses the unique practice of business, criminal, family, labor, employment and immigra-tion law on the southern border. Speakers include Chief Judge Christina Armijo, Judge Robert Brack, Nancy Oretskin and Olsi Vrapi. The program is approved for 14.25 Texas CLE credits (New Mexico MCLE approval pending). State Bar of New Mexico Immigration Law Section members will receive special FBA rates. For more information or to register, visit http://www.fedbar.org/2015-Border-Law.

First Judicial District Bar Association‘Trending Topics in Ethics and Discipline’ William D. Slease, chief disciplinary counsel for the Disciplinary Board of the New Mexico Supreme Court, will speak at the January luncheon at the First Judicial District Bar Association at noon on Jan. 26 at the Santa Fe Hilton. Slease will discuss the ethical challenges presented by several topics, including succession planning and aging/incapacity issues, the rise of social media in the law and the inclusion of non-lawyer practitioners in the field. Attendance is $15 and includes a

buffet lunch. Members of the First Judicial District Bar Association will also elect a new board treasurer at the luncheon. For more information on either topic or to R.S.V.P., contact Lucas Conley at [email protected] or 505-986-2657.

New Mexico Women’s Bar Association Election Results The New Mexico Women’s Bar Associa-tion, a voluntary statewide association open to all attorneys and law school graduates, is pleased to announce the results of its recent election. Serving as officers for 2015 are President Louren Oliveros, Vice-President Monnica Garcia, Secretary Barbara Koenig, Treasurer Lauren Keefe, Compliance Of-ficer Lindsay Griffel and Director at Large Amelia Nelson. New board members, Christina West, DeAnza Valencia Sapien, Deborah Seligman, Hannah Best, Kate Southard, Lori Martinez, Sharon Shaheen, Tania Shahani and Traci Olivas join existing board members Dayan Hochman, past pres-ident, Margaret Branch, Margaret Graham and Yasmin Dennig. Annual membership dues may be paid with the State Bar of New Mexico licensing fees or at www.nmbar.org (for Members > Bars and Legal Groups > New Mexico Women’s Bar Association).

other newsWorkers’ Compensation AdministrationDestruction of Mediation Exhibits In accordance with NMAC 11.4.4.9(Q), Forms, Filing and Hearing Procedures: Return of Records, on an ongoing basis, the New Mexico Workers’ Compensation Administration will be destroying all me-diation exhibits filed in cases in which the recommended resolution has been issued, excluding cases on appeal. The exhibits are stored at 2410 Centre Ave SE, Albuquer-que. For more information, contact the Workers’ Compensation Administration at 505-841-6810 or 1-800-255-7965 and ask for Dana Chavez, clerk of the court.


http://www.abqbar.org


http://www.fedbar.org/2015-Border-Law



Legal EducationJanuary

7 Upcoming 2015 Legislative Session 2.0 G Live Seminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

8 2015 UCC Update: Secured Transactions, Notes, Sales and More

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

13 Structuring Minority-Stake & “Class B” Interests in Business Arrangements


14 Will Contests: Common Grounds for Challenges & How to Defeat or Avoid Them


15 Employees, Social Media, Smartphones, Tablets: Legal Issues for Employers


16 Attorney Ethics & the Use of Credit Cards in Law Firms

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

20–21 Selling Closely-Held Companies to Employees, Parts 1–2


22 Estate Planning for Pre- and Post-Nuptial Agreements


23 Ethics of Maintaining Client Confidences in a Digital World


27 Splitting the Difference: “Earnouts” in Business Sales


28 Ground Leases in Real Estate Transactions


30 Ethics, Disqualifications & Sanctions















Legal Education www.nmbar.org

February

3 Estate Planning for Digital Age 1.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

4 Buying & Selling Partnership/LLC Interest- Economic, Management & Tax Issues


5 Ethics, Email and Law Practice 1.0 EP National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

9 Warrants, Options & Other Incentives in Business Transactions


10–11 Ethics Update, Parts 1–2 2.0 EP National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

12 Estate & trust Planning for Educational Expenses


13 Management Agreements in Real Estate


16 2015 Nonprofit/Exempt Organization Update


17–18 Drafting C and S Corp Stockholder Agreements, Parts 1–2


19 Duress & Undue Influence in Estate & Trust Planning


20 The Ethics of Billing & Collecting Attorney Fees


24 Drafting Independent Contractor Agreements
















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. 35,042 State v. Thompson COA 33,321 12/19/14No. 35,041 State v. Skippings COA 32,990 12/19/14No. 35,038 State v. Garnenez COA 34,120 12/19/14No. 35,035 State v. Stephenson COA 31,273 12/18/14No. 35,040 Montoya v. Wrigley 12-501 12/15/14No. 35,039 Ramirez v. Hatch 12-501 12/15/14No. 35,037 Graham v. Hatch 12-501 12/15/14No. 35,032 State v. Ortiz COA 31,049 12/15/14No. 35,031 State v. Garcia COA 33,818 12/15/14No. 35,030 State v. James COA 33,507 12/15/14No. 35,029 State v. Abeyta COA 33,485 12/12/14No. 35,028 State v. Gonzalez COA 33,942/33,882 12/12/14No. 35,026 Boyd v. United States COA 32,119 12/11/14No. 35,025 State v. Noriega COA 33,323 12/09/14No. 35,024 State v. Begaye COA 33,677 12/09/14No. 35,023 State v. Richard S. COA 33,938 12/08/14No. 35,022 Dills v.

N.M. Heart Institute COA 33,725 12/05/14No. 35,018 State v. Tafoya COA 33,556 12/05/14No. 35,017 State v. Padilla COA 33,830 12/05/14No. 34,962 Jones v. Auge COA 32,178 12/05/14No. 35,016 State v. Baca COA 33,626 12/03/14No. 35,013 State v. Maldonado COA 33,403 12/03/14No. 35,011 Segura v. Franco 12-501 12/03/14No. 35,010 Chavez v. State 12-501 12/03/14No. 35,006 State v. Brito COA 33,827 12/01/14No. 35,005 State v. Archuleta COA 32,794 11/26/14No. 35,004 State v. Olague COA 33,422 11/26/14No. 35,007 State v. Nabhan COA 32,780 11/25/14No. 34,999 State v. Graham COA 33,366 11/25/14No. 34,974 Moses v. Skandera COA 33,002 11/12/14 Responses filed 12/1/14No. 34,964 Segura v. Van Dien COA 32,656 11/05/14No. 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. 34,931 Perry v. Franco 12-501 10/15/14No. 34,928 State v. Luevano COA 31,741 10/14/14No. 34,881 Paz v. Horton 12-501 10/08/14No. 34,913 Finnell v. Horton 12-501 09/22/14No. 34,916 State v. Duran COA 33,271 09/12/14No. 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 08/26/14No. 34,796 Miller v. Ortiz 12-501 08/08/14No. 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 8/22/14

No. 34,765 Helfferich v. Frawner 12-501 06/24/14No. 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 05/29/14No. 34,739 Holguin v. Franco 12-501 05/21/14No. 34,706 Camacho v. Sanchez 12-501 05/13/14No. 34,691 Wetson v. Nance 12-501 05/07/14 Response ordered; filed 7/14/14No. 34,633 Vespender v. Janecka 12-501 04/29/14No. 34,589 Seager v. State 12-501 04/23/14No. 34,571 Fresquez v. State 12-501 04/07/14No. 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. 33,837 State v. Trujillo COA 30,563 11/02/12No. 33,877 State v. Alvarez COA 31,987 12/06/12No. 33,930 State v. Rodriguez COA 30,938 01/18/13No. 33,994 Gonzales v. Williams COA 32,274 08/30/13No. 33,863 Murillo v. State 12-501 08/30/13No. 33,810 Gonzales v. Marcantel 12-501 08/30/13No. 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. 34,549 State v. Nichols COA 30,783 03/28/14No. 34,522 Hobson v. Hatch 12-501 03/28/14No. 34,582 State v. Sanchez COA 32,862 04/11/14No. 34,637 State v. Serros COA 31,975 05/01/14No. 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. 34,630 State v. Ochoa COA 31,243 06/06/14No. 34,789 Tran v. Bennett COA 32,677 08/01/14No. 34,769 State v. Baca COA 32,553 08/01/14No. 34,786 State v. Baca COA 32,523 08/01/14No. 34,784 Silva v. Lovelace Health

Systems, Inc. COA 31,723 08/01/14

Effective December 19, 2014


Writs of CertiorariNo. 34,805 King v.

Behavioral Home Care COA 31,682 08/15/14No. 34,798 State v. Maestas COA 31,666 08/15/14No. 34,843 State v. Lovato COA 32,361 08/29/14No. 34,834 SF Pacific Trust v.

City of Albuquerque COA 30,930 08/29/14No. 34,772 City of Eunice v. N.M. Taxation

and Revenue Dept. COA 32,955 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 10/24/14No. 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 12/19/14

Certiorari Granted and Submitted to the Court:

(Submission Date = date of oralargument or briefs-only submission) Submission DateNo. 33,548 State v. Marquez COA 30,565 04/15/13No. 33,808 State v. Nanco COA 30,788 08/14/13No. 33,862 State v. Gerardo P. COA 31,250 08/14/13No. 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. 34,194/34,204

King v. Faber COA 34,116/31,446 02/24/14No. 34,287 Hamaatsa v.

Pueblo of San Felipe COA 31,297 03/26/14

No. 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. 34,286 Yedidag v.

Roswell Clinic Corp. COA 31,653 08/11/14No. 34,499 Perez v. N.M. Workforce

Solutions Dept. COA 32,321/32,330 08/13/14No. 34,546 N.M. Dept. Workforce Solutions v.

Garduno COA 32,026 08/13/14No. 34,271 State v. Silvas COA 30,917 08/25/14No. 34,365 Potter v. Pierce COA 31,595 08/25/14No. 34,435 State v. Strauch COA 32,425 08/27/14No. 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 10/01/14No. 34,311 State v. Favela COA 32,044 10/27/14No. 34,607 Lucero v.

Northland Insurance COA 32,426 10/29/14No. 34,554 Miller v. Bank of America COA 31,463 11/10/14No. 34,516 State v. Sanchez COA 32,994 12/17/14No. 34,613 Ramirez v. State COA 31,820 12/17/14No. 34,476 State v. Pfauntsch COA 31,674 12/17/14No. 34,764 State v. Slade COA 32,681 01/12/15No. 34,548 State v. Davis COA 28,219 01/14/15No. 34,526 State v. Paananen COA 31,982 01/14/15

Opinions and Decisions on Writ of Certiorari:

Date FiledNo. 34,583 State v. Djamila B. COA 32,333 12/15/14No. 34,488 State v. Norberto COA 32,353 12/18/14No. 34,487 State v. Charlie COA 32,504 12/18/14

Writ of Certiorari Quashed:

Date Order FiledNo. 33,971 State v. Newman COA 31,333 12/19/14

Petition for Writ of Certiorari Denied:

Date Order FiledNo. 35,003 State v. Foulk COA 33,347 12/19/14No. 34,998 State v. Kalouria COA 33,655 12/19/14No. 34,992 State v. Faulkner COA 33,582 12/18/14No. 34,991 State v. Schultz COA 33,652 12/18/14No. 34,990 State v. Price COA 33,726 12/18/14No. 34,989 State v. Jones COA 33,443 12/18/14No. 34,987 State v. Perkins COA 33,665 12/18/14No. 34,986 State v. Chavez-Valdez COA 33,570 12/18/14No. 34,960 Griffin v. Casinova 12-501 12/16/14


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

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

Effective December 19, 2014

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

Published Opinions

No. 32530 2nd Jud Dist Bernalillo CR-06-2355, STATE v J DURAN (reverse and remand) 12/16/2014 No. 32864 11th Jud Dist McKinley CR-11-122, STATE v J LUCERO (reverse and remand) 12/17/2014No. 31704 1st Jud Dist Santa Fe CV-10-2215, EL CASTILLO v D MARTINEZ (reverse) 12/17/2014

Unublished Opinions

No. 33240 11th Jud Dist San Juan CR-11-479, STATE v S UPCHURCH 12/15/2014 (affirm in part, reverse in part and remand) No. 33543 WCA-01-00848, K FIRSBY v LABOR CONCEPTS (affirm in part, dismiss in part) 12/15/2014No. 33686 2nd Jud Dist Bernalillo LR-12-01, STATE v G AVERY (affirm in part, reverse in part) 12/15/2014 No. 33013 8th Jud Dist Taos CR-12-42, STATE v F SAIENNI (affirm) 12/15/2014No. 33586 2nd Jud Dist Bernalillo CR-09-1961, CR-11-3826, STATE v T RIGEL (affirm) 12/15/2014No. 33869 2nd Jud Dist Bernalillo LR-12-70, STATE v A WILLIAMS (affirm) 12/16/2014

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

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

Effective Jan. 7, 2015

Pending Proposed Rule Changes Open for Comment:

Comment Deadline

For 2014 year-end rule amendments that became effective December 31, 2014, 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.

Recently Approved Rule Changes Since Release of 2014 NMRA:

Effective Date

Children’s Court Rules and Forms

10-102 Commencement of action. 08/31/1410-315 Custody hearing. 07/01/1410-317 Notice of change in placement. 08/31/1410-323 Dismissal of a respondent or child;

party dismissal sheet. 08/31/1410-343 Adjudicatory hearing; time limits;

continuances. 07/01/1410-501A Abuse and neglect party information sheet. 08/31/1410-565 Advance notice of change of placement. 08/31/1410-566 Emergency notice of change of placement. 08/31/1410-567 Abuse and neglect party dismissal sheet. 08/31/14

Rules of Appellate Procedure12-206A Expedited appeals from Children’s Court

custody hearings. 07/01/1412-303 Appointment of counsel. 07/01/14

Rules Governing Admission to the Bar15-102 Admission requirements. 06/01/1515-103 Qualifications. 06/01/1515-105 Application fees. 06/01/1515-107 Admission by motion. 06/01/15

Supreme Court General Rules23-109 Chief judges. 04/23/14

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

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

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

From the New Mexico Supreme Court and Court of Appeals


Opinion Number: 2014-NMCA-112

DEBORAH RAINALDI, SHONNA BACA, and ROBERT KESSEL, on behalf of themselves and all others similarly situated,

Plaintiffs-Appellants,v.

CITY OF ALBUQUERQUE,Defendant-Appellee

Docket No. 32,059 (filed May 14, 2014)

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTYVALERIE A. HULING, District Judge

SHANE C. YOUTZSTEPHEN CURTICE

YOUTZ & VALDEZ, P.C.Albuquerque, New Mexico

for Appellants

DAVID TOUREK City Attorney

SAMANTHA M. HULTS, Assistant City AttorneyREBECCA E. WARDLAW Assistant City Attorney

CITY OF ALBUQUERQUEAlbuquerque, New Mexico

for Appellee

Opinion

J. Miles Hanisee, Judge1 In this single issue appeal, we are called upon to resolve a matter of first impres-sion: whether the City of Albuquerque’s (the City) overtime compensation sched-ule for Albuquerque Police Department (APD) employees violates the statutory time payment provisions required of New Mexico employers. See NMSA 1978, § 50-4-2(A) (2005) (requiring the designation of regular pay days on at least a semimonthly basis and that compensation for services rendered be postponed no later than ten days after the close of the pay period). The district court granted the City’s motion for summary judgment and dismissed the col-lective action complaint brought by certain affected APD employees (Plaintiffs), ruling that the City’s two-week processing delay of overtime accrued during the second week of a given bi-weekly pay period complies with Section 50-4-2(A). We hold that the City’s overtime compensation schedule vi-olates the statutory requirement of Section 50-4-2(A) that employees be compensated for “all services rendered” within ten days after the close of a given pay period, and

that the City is not exempt from compli-ance. We reverse.BACKGROUND2 APD employees are paid on a bi-weekly basis. Prior to July 3, 2009, em-ployee paychecks included compensation for both regular and overtime services provided during a given pay period. This practice ended pursuant to Department Special Order 09-53, issued by the APD Chief of Police on June 10, 2009, which changed the manner in which time sheets were submitted for administrative payroll processing. As a result of the modification, on days they are paid, APD employees receive overtime pay accumulated during the first week of the particular pay period, combined with that from the second week of the preceding pay period. Stated differ-ently, compensable overtime performed during the second week of a particular pay period is processed during the subse-quent pay period. APD maintained that the modification was designed to reduce timesheet revisions and to improve super-visory capacity to “track and audit time and identify discrepancies.”3 Nearly two years after APD imple-mented the modification, Plaintiffs filed a lawsuit in district court alleging that

the City’s overtime pay structure violates the statutory requirements for employee compensation. Section 50-4-2(A) states, in relevant part:

An employer in this state shall designate regular pay days, not more than sixteen days apart, as days fixed for the payment of wages to all employees paid in this state. The employer shall pay for services rendered from the first to the fifteenth days, inclusive, of any calendar month by the twenty-fifth day of the month during which services are rendered, and for all services ren-dered from the sixteenth to the last day of the month, inclusive, of any calendar month by the tenth day of the succeeding month.

The City answered and sought summary judgment based on an absence of mate-rial factual disputes and various theories, discussed herein, under which the City asserted it was entitled to judgment as a matter of law. Following a hearing, the district court agreed and granted the City’s motion for summary judgment. Plaintiffs appeal, arguing that although the City satisfies the statutory requirement to “designate regular pay days[] not more than sixteen days apart,” its manner of pay violates the second statutory requirement that employees be paid for all services rendered during a particular pay period in accordance with the prescribed time line. Plaintiffs additionally contend that the City’s proffered bases for exemption do not liberate it from compliance with Section 50-4-2(A).DISCUSSIONA. Standard of Review4 Summary judgment is proper when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. “[I]f no material issues of fact are in dispute and an appeal presents only a question of law, we apply de novo review.” City of Albuquerque v. BPLW Architects & Eng’rs, Inc., 2009-NMCA-081, ¶ 7, 146 N.M. 717, 213 P.3d 1146.B. The City’s Overtime Compensation

Schedule for APD Employees Does Not Comply With Section 50-4-2(A)

5 On appeal, Plaintiffs do not assert that summary judgment was improper due to

http://www.nmcompcomm.us/


http://www.nmcompcomm.us/Advance Opinionsthe existence of genuine issues of material fact. Instead, Plaintiffs argue that the City “[u]nquestionably [v]iolates” the “[c]lear and [u]nambiguous [c]onstraints” of Sec-tion 50-4-2(A) as a matter of law, and none of the City’s “proffered defenses excuse [its] failure to abide by the plain language of the statute[.]”6 Section 50-4-2(A) imposes on em-ployers two distinct wage payment re-quirements: (1) that employers “shall designate regular pay days, not more that sixteen days apart, as days fixed for the payment of wages to all employees paid in [the] state[,]” and (2) that employers “shall pay for services rendered from the first to the fifteenth days . . . by the twenty-fifth day of the month during which services are rendered, and for all services rendered from the sixteenth to the last day of the month . . . by the tenth day of the succeeding month.” Id. The parties do not dispute that the City’s bi-weekly compensation schedule, designating pay days every fourteen days, is in compliance with the frequency of compensation re-quirement. The parties disagree, however, as to whether the City complies with the second statutory requirement establishing the timing by which compensation for services is due. See § 50-4-2(A).7 Plaintiffs assert that because the City does not compensate for overtime earned during the second week of a pay period until the pay day following the subsequent pay period, which occurs twenty-one days later, the City is afoul of the requirement that payment for all services rendered be made by the tenth day following conclu-sion of any given period. The City initially responds that because its pay days occur more frequently than is required by Sec-tion 50-4-2(A), it is in compliance with the statute. Our review of the wording of the statute, however, provides no indica-tion that employers choosing to schedule pay periods at a greater frequency than is statutorily required are consequently freed from having to compensate employees for all services rendered by the time payment is otherwise due. In fact, with the lim-ited exception of “state employees, other than employees of institutions of higher education,” whose salaries and wages are governed by the rules of the department of finance and administration, “an employer shall pay wages in full[.]” Section 50-4-2(B).8 We recognize that Section 50-4-2(A) facially illustrates a semimonthly pay-ment schedule, requiring one pay day

by the twenty-fifth day of the month for services rendered between the first and fifteenth days, and another by the tenth day of the succeeding month for services rendered between the sixteenth and last days of the month. As we have noted, the City does not utilize this semimonthly schedule, but rather a bi-weekly payment schedule; thus, the specific semimonthly payment deadlines are inapplicable here. Nonetheless, we have previously observed the statutory compensation time line to require payment within ten days after the close of any given pay period, not just a bi-monthly one. See N.M. Dep’t of Labor v. A.C. Elec., Inc., 1998-NMCA-141, ¶ 20, 125 N.M. 779, 965 P.2d 363 (citing Section 50-4-2(A) as requiring “payment of wages on at least semi[]monthly basis with payment deferred no later than ten days after close of pay period”). The City’s current overtime compensation schedule does not render payment for overtime services within ten days after the close of the given pay period, but defers payment for the second week of the pay period until the subsequent pay day, twenty-one days following the conclusion of the pay period. This delayed compensation of accrued overtime is not consistent with the ten-day payment window specified in Section 50-4-2(A).9 Accordingly, we conclude that the manner in which the City compensates its APD employees is inconsistent with that statutorily required of employers in New Mexico. We must next resolve whether the City has asserted any basis on which it is excluded or is otherwise exempt from the category of employers governed by Section 50-4-2(A).C. The City’s Proffered Exemptions Do

Not Liberate it from Compliance With Section 50-4-2(A)

10 The City argues that even if its overtime compensation schedule is disal-lowed by Section 50-4-2(A), it is exempt from compliance on any of four distinct bases: (1) Section 50-4-2(B) provides an exception for state public employers, and as an auxiliary of the state, the City is likewise exempt; (2) the Legislature did not intend Section 50-4-2(A) to apply to any public employers; (3) public employers are explicitly excluded from the definition of “employer” under Section 50-4-21 of the New Mexico Minimum Wage Act (MWA), NMSA 1978, §§ 50-4-19 to -30 (1955, as amended through 2009); and (4) as a home rule municipality, the City may

“exercise all legislative and policy making functions[.]” We address each of the City’s arguments below and conclude that none exempt it from the statutorily mandated compensation time line of Section 50-4-2(A).1. The City Does Not Qualify for

Exemption Under Section 50-4-2(B) Despite Being an Auxiliary of the State

11 First, the City argues that it is exempt from compliance with Section 50-4-2(A) because Section 50-4-2(B) excepts “pay-ment of salaries and wages to state employ-ees[.]” As an “auxiliary of the state[,]” the City asserts that it is included within the grouping of statutorily exempt state public employers. The City relies on Morningstar Water Users Ass’n v. Farmington Municipal School District,1995-NMSC-052, ¶ 37, 120 N.M. 307, 901 P.2d 725, and City of Albu-querque v. New Mexico Public Regulation Commission, 2003-NMSC-028, ¶ 3, 134 N.M. 472, 79 P.3d 297 for this proposition.12 We conclude that Plaintiff ’s reli-ance on both cases is misplaced. While Morningstar Water Users Ass’n does state, as the City contends, that a municipality “is an auxiliary of the state government,” this relationship does not equate munici-palities such as the City with the state for the purposes of benefits or privileges. See Morningstar Water Users Ass’n, 1995-NMSC-052, ¶ 37 (citing Loeb v. City of Jacksonville, 134 So. 205, 207 (Fla. 1931), which stated that, “[a] ‘city’ is a mere auxiliary to the state government. It is a public institution for self-government and local administration of the affairs of state”); Hurley v. Vill. of Ruidoso, 2006-NMCA-041, ¶ 7, 139 N.M. 306, 131 P.3d 693 (de-clining to recognize the proposition that a municipality is an auxiliary of the state as pertinent to the analysis of whether a municipality is afforded the same benefits and immunities possessed by the state). Likewise, Public Regulation Commission does not establish the proposition that municipalities are treated identically to the state for purposes of benefits such as statutory exemption, but instead holds that political subdivisions of the state possess “only such powers as are expressly granted to it by the Legislature[.] 2003-NMSC-028, ¶ 3 (internal quotation marks and citation omitted). See New Mexicans for Free Enter. v. City of Santa Fe (NMFE), 2006-NMCA-007, ¶ 13, 138 N.M. 785, 126 P.3d 1149 (stating that because the municipality is an auxiliary of the state, the municipalities are “subordinate to the state government”).



http://www.nmcompcomm.us/Advance Opinions13 More tellingly, the plain wording of Section 50-4-2(B) expressly exempts only the State from the payment rigors to which New Mexico employers must adhere. Be-cause municipalities such as the City are not discharged from compliance by the statutory language chosen by the Legisla-ture and are not otherwise assisted by our jurisprudence, we will not ourselves supply exemption. Reule Sun Corp. v. Valles, 2010-NMSC-004, ¶ 15, 147 N.M. 512, 226 P.3d 611 (stating that under the plain meaning rule, “[w]e will not read into a statute lan-guage which is not there, especially when it makes sense as it is written” (internal quotation marks and citation omitted)). See Sims v. Sims, 1996-NMSC-078, ¶ 17, 122 N.M. 618, 930 P.2d 153 (stating that the plain meaning rule requires a court to “give effect to [the statute’s] language and refrain from further statutory in-terpretation” when the language is clear and unambiguous). We conclude that the lone delineated exception to the payment schedule contained in Section 50-4-2(B) is expressly applicable to the compensation of certain “state employees” only and does not by extension apply to auxiliaries of the state, such as the City.2. The City is Not Excused From

Compliance With Section 50-4-2(A) on the Basis That the Phrase “Public Employer” is Absent From the Definition of “Employer” Contained in Section 50-4-1(A)

14 As a second basis for exemption, the City argues that the Legislature intended the City to be excused from compliance with Section 50-4-2(A) because the phrase “public employer” is not expressly included within the definition of “employer” under Section 50-4-1(A). In pertinent part, Sec-tion 50-4-1(A) defines “employer” as “ev-ery person, firm, partnership, association, corporation, receiver or other officer of the court of this state, and any agent or officer of any of the above mentioned classes[.]” We conclude this language includes New Mexico employers of any category.15 Our perspective is supported by the purposeful and carefully limited exclu-sion of salaries and wages paid to most state employees as permitted by Section 50-4-2(B). This provision would be need-less were Section 50-4-2(A) inapplicable to the State in its capacity as a public employer. This necessary exemption is then limited insofar as it applies only to wages paid to state employees “other than employees of institutions of higher education.” Section 50-4-2(B). We view

this language to constitute the State’s limited exemption from compliance with Section 50-4-2(A) excluding employees in higher education occupations that are paid according to the schedule and time limitations established within Section 50-4-2(A). See § 50-4-2(B). By so exact-ingly describing the nature of the State’s exclusion from the statute, we must pre-sume that were other exclusions to exist, they would not have gone unmentioned or otherwise wholly omitted from the statute. When the Legislature has spoken with precision on a topic—here establish-ing a lone category of exclusion from the statute’s otherwise general application—it is not the proper role of the judiciary to make plural that which is singular. See City of Deming v. Deming Firefighters Local 4521, 2007-NMCA-069, ¶ 20, 141 N.M. 686, 160 P.3d 595 (“As a matter of statutory construction, we do not read language that is not present into a stat-ute.”); Swink v. Fingado, 1993-NMSC-013, ¶ 29, 115 N.M. 275, 850 P.2d 978 (“Legis-lative silence is at best a tenuous guide to determining legislative intent.”).16 The City makes several arguments geared toward our application of some-thing other than this general approach to statutory construction. First, it maintains that “when the [L]egislature wants to include governmental employers in its statutes, it does so explicitly.” We are not persuaded by this overly general assertion. Our examination of NMSA 1978, Chapter 50, Article 4 (1933, as amended through 2013) indicates that when the Legislature did not intend a statutory provision to apply to specific entities—the state and all of its political subdivisions—it instead explicitly provided broader exemption. For example, in the separate definitional section applicable to the MWA, also set forth in Chapter 50, Article 4, the Legislature expressly excluded “the state or any political subdivision of the state” from the definition of an “employer.” See § 50-4-21(B). Contrary to the City’s argu-ment, within Chapter 50, Article 4, we see no indication that when the Legislature intended a statutory provision to apply to specific governmental employers, it explicitly added those employers. We do, however, observe that where the Legisla-ture did not want to include governmental employers, it expressly excluded them. Section 50-4-21(B). Yet Section 50-4-1 does not contain the express exclusion contained in Section 50-4-21. Considering the manners in which exclusions within

both statutes were expressed, we are not persuaded that Section 50-4-2(A) silently intended that its payment mandates were inapplicable to municipalities simply be-cause municipalities were not affirmatively identified as employers within the statute.17 Second, the City asserts that the legislative history of NMSA §§ 50-4-1 to -12 (1937, as amended through 2005) compels the conclusion that Section 50-4-2(A) is “clearly not applicable to public employees.” Indeed, when the Act was originally passed, it was entitled “An Act to Establish Regular Pay[]Days and to Regulate the Payment of Wages and Compensation for Labor or Service in Private Employment and Repealing All Acts in Conflict Herewith.” 1937 N.M. Laws, ch. 109 (emphasis added). The City asserts that due to the original title’s application to solely “[p]rivate [e]mploy-ment,” the current version of the statute must intend all public employers to be exempt. Id. We are not persuaded that changes to the title of the statute lead to such a conclusion for two reasons. First, the statute no longer contains a title impli-cating only private employers; the chapter is currently entitled “Employment Law.” See NMSA 1978, Chapter 50. We cannot construe modification of the original ti-tling language to contradictorily indicate the Legislature’s intent to continue to ex-clude public employers from the statute’s breadth. Second, we have noted that the Legislature subsequently included the provision within Section 50-4-2(B) that exempts certain state employers from compliance. This single, limited exemp-tion appears to indicate that non-exempt state employers and other public employ-ers are, consistent with the elimination of the “[p]rivate [e]mployment” descriptor contained within the enacting title of the legislation, subject to compliance with Section 50-4-2(A) unless otherwise speci-fied.18 Third, the City argues that not only was the title of the Act changed, but the 1937 iteration of the statute utilized the phrase “every employer,” while the cur-rent Section 50-4-2(A) applies to “[a]n employer.” Compare 1937 N.M. Laws, ch. 109, § 2, with Section 50-4-2(A). Yet we cannot construe such a minute and seemingly indistinct alteration to the way employers are described to transforma-tively exclude all public employers from the statutory definition. As we have noted, Section 50-4-2(B)’s express exclusion of the state in its capacity as an employer



http://www.nmcompcomm.us/Advance Opinionswould be plainly unnecessary were all public employers otherwise exempted. See Section 50-4-2(B).19 The City’s fourth assertion that the Legislature did not intend for munici-palities to be included in the definition of “employer” under Section 50-4-1(A) is based on the fact that the payment of wages to public employees is not addressed in Chapter 50, Article 4, but rather in NMSA 1978, § 10-7-2(A) (2005). This argument is likewise unavailing. Like Section 50-4-2(B), Section 10-7-2(A) is only applicable to “[p]ersons employed by or on behalf of the state[.]” As we discussed above, a municipality is not to be equated with the state for the purpose of the statutory interpretation of Section 50-4-1(A).20 In rejecting the City’s arguments in these regards, we note that if public policy or unique circumstances such as those in existence with regard to APD overtime justify the addition of municipalities as ex-cluded employers for purposes of Section 50-4-2, it is the Legislature’s prerogative to modify the statute it wrote. We hold that as written, the City is not excluded from the definition of employer under Section 50-4-1(A) based on its absence from the exclusionary statutory language, and we will not read the further exclusion of mu-nicipalities into Section 50-4-1(B) where such language does not there appear.3. The City is Not Exempt From

Compliance with Section 50-4-2(A) by Virtue of the Definition of “Employer” Under the MWA

21 As its third proffered exception, the City argues it is exempt from compli-ance with Section 50-4-2(A) because the payment of overtime wages is collaterally addressed within Section 50-4-22(D) of the MWA, and under its definition of em-ployer, political subdivisions of the state are explicitly excluded. The MWA defines “employer” as “any individual, partner-ship, association, corporation, business trust, legal representative . . . but shall not include . . . the state or any political subdi-vision of the state[.]” Section 50-4-21(B). The parties agree that in this context the City is excluded from this definition of employer; however, they dispute whether exclusion under the MWA bears the reach to exempt the City from compliance with Section 50-4-2(A). Plaintiffs contend that

because Section 50-4-2(A) is not contained within the MWA itself, the City cannot be peripherally exempted from compliance with Section 50-4-2(A) based on an inap-plicable statutory definition of employer contained within a separate and distinct act. See § 50-4-20 (stating that “Sec-tions 50-4-19 through 50-4-30 . . . may be cited as the ‘Minimum Wage Act.’ ”)1 Conversely, the City argues that because Section 50-4-22(D) of the MWA governs the very necessity of employee compensa-tion for overtime services, and because the City is not an employer required to provide overtime compensation for purposes of Section 50-4-21(B), it is exempted from a statutorily mandated pay schedule with regard to overtime compensation.22 Here, the City has opted not to uti-lize its statutory exemption from overtime compensation and has instead decided to pay its employees for such additional services. But even in this circumstance, we find no authority to support the as-sertion that by electing to compensate its employees for overtime services, the City is automatically exempted from the statuto-rily mandated compensation schedule for “all services rendered.” Section 50-4-2(A). Because work completed during overtime hours constitutes a service rendered by the employee, determined by the City to be compensable, Section 50-4-2(A) contin-ues to mandate that the City must pay its employees within ten days of the end of a particular pay period.23 In conjunction with this argument, the City argues that we should interpret the MWA guided by federal law. See Garcia v. Am. Furniture Co., 1984-NMCA-090, ¶ 13, 101 N.M. 785, 689 P.2d 934 (stating that it is appropriate to look to the decisions of federal courts when interpreting a New Mexico statute when the federal and New Mexico statutory provisions are similar). The City asserts that Section 50-4-22(D), the overtime provision of the MWA, is similar to the federal overtime provision, 29 U.S.C. § 207(a) (2012), set forth within the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 (2012). Accordingly, it contends we should look to federal law to determine whether the City’s overtime compensation schedule is improper.24 The FLSA requires non-exempt employers to compensate employees at

a rate of at least one and one-half times the regular rate when employees work in excess of forty hours per week, similar to Section 50-4-22(D). See 29 U.S.C. § 207(a)(1). Under federal law, “[t]he general rule is that overtime compensation earned in a particular work[]week must be paid on the regular pay day for the period in which such work[]week ends.” 29 C.F.R. § 778.106 (2013). However, when the proper amount of overtime cannot be determined until after the end of the regular pay pe-riod, the employer may compensate for overtime “as soon after the regular pay period as is practica[l]” without violating the Act. Id.25 The City contends that its fourteen-day delay in processing overtime is in compliance with the federally analogous “prompt payment requirement” of the FLSA and is, therefore, not in violation of Section 50-4-2(A). For this contention, the City relies on Nolan v. City of Chicago, 162 F. Supp. 2d 999, 1003-04 (N.D. Ill. 2001). Nolan held that a delay in overtime com-pensation of approximately twenty-eight days was not in violation of 29 C.F.R . § 778.106 because payment was made “as soon as is practica[l].” Nolan, 162 F. Supp. 2d at 1005. However, Nolan is distinguish-able from the present case. In Nolan, the City of Chicago was a recognized employer under the FLSA and directly subject to the overtime compensation requirements. Nolan, 162 F. Supp. 2d at 1001. Here, as the City notes, by virtue of Section 50-4-21(B), it is exempt from Section 50-4-22(D) and therefore not required to compensate for overtime services. Furthermore, the Nolan court acknowledged that the overtime calculation process at issue was a highly complex system, and although the City of Chicago was working to implement a more efficient automated system, it was, at the time, unable to implement a system that could process overtime in a timely manner. Nolan, 162 F. Supp. 2d at 1001. In the present case, prior to July 3, 2009, the City compensated APD employees for accrued overtime hours in a timely manner. It was not until the APD Chief of Police modified the time sheet submission requirements that the City encountered delays in processing time. Additionally, there was no indication from the City that it was working to create a more timely

1 Some confusion existed on the part of Plaintiffs with regard to the MWA. In their original complaint, Plaintiffs asserted a viola-tion of Section 50-4-2 and referenced this section as part of the MWA. The MWA, however, only contains Sections 50-4-19 through 50-4-30. See § 50-4-20. Plaintiffs acknowledge this mistake in their brief in chief and now contend that the MWA “has no bearing on this case.”



http://www.nmcompcomm.us/Advance Opinionsand efficient system. Because the City is not an employer for the purposes of the mandatory compensation of overtime and has shown a previous ability to provide timely calculation of overtime hours, we determine this case is not analogous to Nolan and decline to extend the Nolan interpretation to contrary New Mexico law. In any event, nothing within Nolan provides a basis in law by which we or the City can conclude that the payment requirements of Section 50-4-2(A), even considered in the light of the MWA, may be circumvented.4. The City is Not Vested With the

Authority to Implement its Own Pay Schedule, in Conflict with Section 50-4-2(A), by Virtue of its Status as a Home Rule Municipality

26 In its final exemption argument, the City asserts that it has the right to adminis-ter its currently implemented pay schedule under the home rule provision of Article X, Section 6 of the New Mexico Constitution. The home rule provision provides that “[a] municipality which adopts a charter may exercise all legislative powers and perform all functions not expressly denied by general law or charter.” N.M. Const. art. X, § 6(D). A“ ‘general law’ ” is a “law that applies generally throughout the state, or is of statewide concern, as contrasted to a ‘local’ or ‘municipal’ law[.]” City of Albuquerque v. N.M. State Corp. Comm’n, 1979-NMSC-095, ¶ 7, 93 N.M. 719, 605 P.2d 227. A determination of whether the state has expressly denied a municipality’s authority to act “involves an inquiry into whether the statute evinces any intent to negate the municipal legislative power at issue[.]” Prot. & Advocacy Sys. v. City of Albuquerque, 2008-NMCA-149, ¶ 47, 145 N.M. 156, 195 P.3d 1 (alterations, internal quotation marks, and citation omitted). The general law need not have explicit lan-guage of negation; “words or expressions which are tantamount or equivalent to such a negation are equally effective.” State ex rel. Haynes v. Bonem, 1992-NMSC-062, ¶ 22, 114 N.M. 627, 845 P.2d 150.27 Our first step in determining if the City’s creation of its own overtime com-pensation schedule is expressly denied by

general law is whether Section 50-4-2 is a general law. “A general law impacts all inhabitants of the state rather than just the inhabitants of a municipality.” NMFE, 2006-NMCA-007, ¶ 18. Although Section 50-4-2(B) does create a limited exception for the compensation of many state em-ployees, employee compensation is a sub-ject that affects working individuals state-wide, not solely within the local bounds of the municipality of Albuquerque. Section 50-4-2 is a “general law because it applies generally throughout the state, relates to a matter of statewide concern, and impacts workers across the entire state.” NMFE, 2006-NMCA-007, ¶ 18.28 In order to determine if Section 50-4-2 expressly denies the City the power to create an overtime compensation schedule that varies from the time line articulated in Section 50-4-2(A), we must consider whether Section 50-4-2(A) “evinces any intent to negate such municipal power, whether there is a clear intent to preempt that governmental area from municipal policymaking, or whether municipal authority to act would be so inconsistent with [Section 50-4-2(A)] that [Section 50-4-2(A)] is the equivalent of an express denial.” NMFE, 2006-NMCA-007, ¶ 19. Here, Section 50-4-2(A) expressly creates an employee compensation time line in which an employer must pay its employees for all services rendered within ten days after the completion of the pay period. See A.C. Elec., Inc., 1998-NMCA-141, ¶ 20. As we have determined, the City is included in the definition of an “employer” under Sec-tion 50-4-1(A), the definitional provision applicable to Section 50-4-2(A), and we conclude that the creation of an exemption on the basis of the City’s home rule status would in effect defeat the Legislature’s apparent intent to preempt municipal action in this area. Because Section 50-4-2(A) articulates an express compensation schedule for all services rendered and contains no broadly worded exception into which municipalities such as the City fall, we conclude that the statute’s timeliness mandate serves as an express denial of the City’s proffered authority to create its own overtime compensation schedule for APD employees.

29 Although the City argues that the compensation of its employees is a “lo-cally limited proprietary function and falls within the home rule” and that it has the autonomy to act without state interference in matters of local concern, the City is not acting in an area of purely local concern. While it is true that the state cannot constitutionally deprive a home rule municipality from legislating on purely local affairs, see Apodaca v. Wilson, 1974-NMSC-071, ¶ 16, 86 N.M. 516, 525 P.2d 876, the specific issue of concern here is not the compensation of all City employees, but the overtime compensation of employees of the City’s police depart-ment. The operation of a police force is not a local or proprietary function, but a governmental one. Barnett v. Cal M, Inc., 1968-NMSC-159, ¶ 8, 79 N.M. 553, 445 P.2d 974 (“It is firmly established by the great weight of authority that the operation of a police department is a governmental function[.]”). As a governmental function, the City acts in this analysis as an agent of the state; thus, the compensation of em-ployees of its police force is not incidental to its authority under the home rule. See N.M. State Corp. Comm’n, 1979-NMSC-095, ¶ 8 (concluding that a municipality carrying out a governmental function is acting as an agent of the state, and only when a municipality is acting in a propri-etary capacity is a power incidental to the home rule). Here, because the City acts in a governmental capacity in this area of general public concern, it does not have the autonomy to act free from legislative interference by the state and is bound by the general law directives of Section 50-4-2(A).CONCLUSION30 For the foregoing reasons, we reverse the district court’s decision to grant summary judgment to the City and remand for further proceedings consistent with this Opinion.31 IT IS SO ORDERED.

J. MILES HANISEE, Judge

WE CONCUR:CYNTHIA A. FRY, JudgeMICHAEL E. VIGIL, Judge



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MONIQUE SAMBRANO, Individually and as Personal Representative of the ESTATE OF ANGEL VALE

and EDWARD LUCERO, Individually,Plaintiffs-Appellees,

v.SAVAGE ARMS, INC.,

Defendant-Appellant,and

N.A.D. CORPORATION, JOYCE CRAWFORD, and DE ANGELO MONTOYA,

DefendantsDocket No. 32,924 (filed July 29, 2014)

APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTYDREW D. TATUM, District Judge

KENNETH G. EGANLas Cruces, New Mexico

L. HELEN BENNETTAlbuquerque, New Mexico

for Appellees

RICHARD F. ROWLEY, IIIROWLEY LAW FIRM, LLC

Clovis, New Mexico

ANTHONY M. PISCIOTTIJEFFREY M. MALSCH

DANNY C. LALLISPISCIOTTI, MALSCH & BUCKLEY, P.C.

Florham Park, New Jerseyfor Appellant

Opinion

James J. Wechsler, Judge1 An intruder broke into the home of Angel Vale and killed her using a rifle manufactured and distributed by Defen-dant Savage Arms, Inc. (Savage). Savage had sold the rifle with a cable lock manu-factured by Defendant N.A.D. Corpora-tion (NAD). The complaint alleged, among other things, that the lock was not fit for its intended purpose and that Savage was negligent for pairing and selling the lock with the rifle. Savage moved to dismiss on the basis that the Protection of Lawful Commerce in Arms Act (the PLCAA), 15 U.S.C. §§ 7901-03 (2012), precludes this action against Savage and the intentional criminal acts of the intruder constitute an independent intervening cause that precludes Savage’s liability as a matter of law. The district court denied the motion. We hold that the PLCAA, which insulates a firearm manufacturer from suit “caused by the criminal or unlawful misuse of firearm

products . . . by others when the product functioned as designed and intended[,]” embraces this action. 15 U.S.C. § 7901(b)(1). Because the PLCAA dictates reversal, we do not reach the argument by Savage that tort liability does not apply.BACKGROUND2 Plaintiffs, Monique Sambrano, indi-vidually, and as personal representative of the Estate of Angel Vale, and Edward Lucero, allege in their complaint that an intruder, Defendant De Angelo Montoya, entered the home of Vale and Lucero, her fiancé. Lucero owned a rifle with a lock. The rifle was manufactured and distributed by Savage, and the lock was distributed by NAD. Savage and NAD “paired” the rifle and the lock for sale to the general public as a packaged set. While in the home, Montoya took possession of the rifle and opened the lock “with a key that was not a designated key for unlocking” the lock. Vale returned home, confronted Montoya, and he shot and killed her with the rifle. The complaint asserts claims for negligence, strict liability, misrepresenta-

tion and/or breach of warranty, res ipsa loquitur, damages for wrongful death, loss of consortium, and punitive damages. The claims center on the allegations that Savage and NAD negligently selected the lock that was not fit for its intended purpose; should not have paired the lock with the rifle; failed to use ordinary care in inspecting, testing, packaging, importing, and pairing the lock with the rifle; and failed to use the required care to package and distribute a safe product.3 Based on the PLCAA, Savage moved to dismiss the complaint under Rule 1-012(B)(6) NMRA for failure to state a claim upon which relief can be granted. The dis-trict court denied the motion, and over Plaintiffs’ objection, ultimately included language certifying the case for an inter-locutory appeal in its order. This Court granted Savage’s application for leave to file an interlocutory appeal, accepting the appeal.STANDARD OF REVIEW 4 We review a district court’s action on a motion to dismiss under Rule 1-012(B)(6) under de novo review. Valles v. Silver-man, 2004-NMCA-019, ¶ 6, 135 N.M. 91, 84 P.3d 1056. We accept all well-pleaded factual allegations as true and determine “whether the plaintiff might prevail under any state of facts provable under the claim.” Id. (internal quotation marks and citation omitted).PLCAA QUALIFIED CIVIL LIABILITY ACTION5 Congress designed the PLCAA to prohibit claims against manufacturers and distributors of firearms “for the harm solely caused by the criminal or unlawful misuse of firearm products . . . by others when the product functioned as designed and intended.” 15 U.S.C. § 7901(b)(1). A “qualified civil liability action” under the PLCAA must be dismissed. 15 U.S.C. § 7902(b). As relevant to the case, such an action is generally brought against a manufacturer or seller of a “qualified prod-uct” for damages resulting from criminal or unlawful misuse of the product by the plaintiff or a third party. 15 U.S.C. § 7903(5)(A). A “qualified product” includes a firearm and the component parts of a firearm. 15 U.S.C. § 7903(4).6 To ascertain Congress’s intent in enacting the PLCAA, we first look to the language that Congress used. See Baker v. Hedstrom, 2013-NMSC-043, ¶ 11, 309 P.3d 1047 (stating that the plain language of a statute is the primary indicator of legisla-tive intent). Viewing the language of the



http://www.nmcompcomm.us/Advance OpinionsPLCAA, it requires for a qualified civil li-ability action that the action (1) be brought against a manufacturer or seller of a quali-fied product, (2) for relief including dam-ages, (3) that resulted from the criminal or unlawful misuse of a qualified product by the plaintiff or a third party. 15 U.S.C. § 7903(5)(A). On its face, the PLCAA applies to the allegations of the complaint in this case in that Plaintiffs have brought suit (1) against Savage, a manufacturer or seller of a firearm, (2) for damages, (3) that result from the criminal misuse of the rifle by Montoya, a third party.7 Although Plaintiffs do not dispute that a third party, Montoya, criminally misused Savage’s rifle to cause them damage, the issue concerning the applicability of the PLCAA arises because Plaintiffs contend that the PLCAA does not apply because they base their claims on Savage’s actions related to the lock rather than on Mon-toya’s criminal action. Indeed, the com-plaint alleges, among other allegations, that (1) Savage was negligent because, with NAD, it selected the lock as a cost-saving measure and the lock was unfit for its in-tended purpose; and (2) Savage and NAD did not exercise ordinary care in pairing the lock with the rifle and in adopting proper safety devices for the rifle, and the pairing of the lock and the rifle created a foreseeable danger of injury and serious harm.8 Plaintiffs’ argument raises the ques-tion of the scope of the intent underlying the PLCAA. See Rayellen Res., Inc. v. N.M. Cultural Props. Review Comm., 2014-NMSC-006, ¶ 38, 319 P.3d 639 (stating that the first step in statutory construction is to discern and give effect to the intent of the Legislature). Congress expressed its intent by stating its purposes in adopting the PLCAA. It stated, in part, that it intended to

prohibit causes of action against manufacturers, distributors, dealers, and importers of fire-arms . . . for the harm solely caused by the criminal or un-lawful misuse of firearm prod-ucts . . . by others when the product functioned as designed and intended. . . [, and] prevent the use of such lawsuits to im-pose unreasonable burdens on interstate and foreign commerce.

15 U.S.C. § 7901(b)(1), (4). Subject to exceptions for negligent entrustment, neg-ligence per se, and product liability that do not apply in this case, 15 U.S.C. § 7903(5)

(A)(ii), (v), the PLCAA establishes a new legal standard for actions that fall within the definition of a qualified civil liability action that preempts common law claims based on general tort liability. City of New York v. Beretta U.S.A. Corp., 524 F.3d 384, 395 (2d Cir. 2008); Ileto v. Glock, Inc., 565 F.3d 1126, 1135 (9th Cir. 2009).9 The allegations concerning the pair-ing of the Savage rifle with a lock do not alter the congressional intent. The lock was merely an accessory. Even assuming that the lock was defective or unfit for its intended use, Plaintiffs’ claimed damages nevertheless resulted from a third party’s criminal or unlawful misuse of the rifle. One purpose of the PLCAA is to prevent handgun manufacturers from defending against negligence claims based on the criminal misuse of their firearms. See H.R. Rep. No.109-124, at 8 (2005) (“Handgun manufacturers have no duty to control the conduct of third parties.”). The rifle “functioned as designed and intended.” 15 U.S.C. § 7901(b)(1). The PLCAA does not contain exceptions for a defective ac-cessory or negligent distribution.10 Plaintiffs specifically argue that their action is not a qualified civil liability action because the lock, as an accessory to the rifle, is not a qualified product under 15 U.S.C. § 7903(4). Savage does not dispute that the lock was an accessory rather than a component of the rifle such that the lock does not fall within the definition of a “qualified product.” Plaintiffs’ argu-ment, however, misses the mark. Although Plaintiffs have framed their complaint to focus upon the lock as opposed to the rifle, Montoya nonetheless used a quali-fied product, the rifle, as the instrument to commit the crime that resulted in the harm to Plaintiffs. As a result, the congres-sional intent embraces Plaintiffs’ action. The PLCAA does not preclude Plaintiffs’ claims against NAD, the lock distributor.11 We note that the PLCAA expresses the necessary connection between a plain-tiff ’s damages and a third party’s criminal or unlawful misuse of a firearm twice in its provisions using different terminology. In stating its purposes, Congress describes its intent to prohibit claims “for the harm solely caused by” a third party’s criminal or unlawful misuse. 15 U.S.C. § 7901(b)(1). In defining a qualified civil liability action, Congress included an action for damages “resulting from” a third party’s criminal or unlawful misuse. 15 U.S.C. § 7903(5)(A). We see no distinction in the intent. Under the PLCAA, to be a qualified civil liability

action, the harm or damages must result from the third party’s criminal or unlawful misuse of a firearm, as has occurred in this case. Id.PLCAA EXCEPTION12 Plaintiffs further argue that, even if their action is a qualified civil liability action under the PLCAA, their claims fall within the exception to a qualified civil liability action contained in 15 U.S.C. § 7903(5)(A)(iv). [AB 19-23] That excep-tion applies to “an action for breach of contract or warranty in connection with the purchase of the product[.]” Id. But, as Plaintiffs assert, this exception depends on the lock being “considered a ‘product’ that brings Plaintiffs’ action within the ambit of the PLCAA[.]” [AB 21] The lock is not a qualified product under the PLCAA.CONCLUSION13 We reverse the district court’s order denying Savage’s motion to dismiss. The PLCAA applies to this action and requires that it be dismissed. Because the PLCAA dictates dismissal, we do not reach the argument by Savage that tort liability does not apply.14 IT IS SO ORDERED.

JAMES J. WECHSLER, Judge

I CONCUR:RODERICK T. KENNEDY, Chief JudgeMICHAEL E. VIGIL, Judge (specially concurring).

VIGIL, Judge (specially concurring).15 I completely agree with the analysis of the PLCAA in the majority opinion. I write separately because, in my view, Defendants owed no duty to Plaintiffs in this case. Because no duty was owed, the analysis under the PLCAA is unnecessary.16 Rodriguez v. Del Sol Shopping Ctr. Assocs., 2014-NMSC-014, ¶ 1, 326 P.3d 465 holds that “foreseeability is not a factor for courts to consider when determining the existence of a duty, or when deciding to limit or eliminate an existing duty in a particular class of cases.” Rodriguez also re-quires courts to “articulate specific policy reasons, unrelated to foreseeability con-siderations, if deciding that a defendant does not have a duty or that an existing duty should be limited.” Id.17 The question presented under the facts of this case is whether Defendants owed a duty to control Montoya’s criminal actions of breaking into Plaintiffs’ home, stealing the rifle, opening the lock, loading the rifle, and then shooting and killing Vale when she returned home and confronted



http://www.nmcompcomm.us/Advance Opinionshim. In my view, it is contrary to public policy to require the manufacturer of a firearm to control the criminal conduct of a third party who steals the firearm and then intentionally misuses the firearm to shoot and kill an innocent person. There is no relationship between the manufacturer, the shooter, and the victim that justifies imposing such a legal duty upon the manufacturer. Further, the manufacturer played no role in creating the risk suffered by Plaintiffs, nor is there any ability on the part of the manufacturer to control that risk.18 I therefore conclude that Defendants owed no duty to Plaintiffs in this case un-der the reasoning of the following authori-ties: City of Philadelphia v. Beretta U.S.A., Corp., 126 F. Supp. 2d 882, 898-903 (E.D.

Pa. 2000), aff ’d, 277 F.3d 415, 425 (3d Cir. 2002) (concluding that gun manufacturers are under no legal duty to protect citizens from the deliberate and unlawful use of their products by applying a five factor test to determine if sound public policy dictates that a particular plaintiff is entitled to protection); Bloxham v. Glock Inc., 53 P.3d 196, ¶¶ 6-11 (Ariz. Ct. App. 2002) (considering public policy and holding that a gun manufacturer owed no duty to plaintiffs where the gun was sold at a gun show and the purchaser later used the gun to shoot and kill the victims); First Com-mercial Trust Co. v. Lorcin Eng’r, Inc., 900 S.W.2d 202, 214-216 (Ark. 1995) (holding that the manufacturer of a handgun owed no duty to the victim who was murdered); Hamilton v. Beretta U.S.A. Corp., 750

N.E.2d 1055, 1059-1063 (N.Y. App. 2001) (holding that handgun manufacturers do not owe a duty of reasonable care in the marketing and distribution of their hand-guns to persons killed or injured through the use of illegally obtained handguns, and concluding that public policy does not justify imposing such a duty).19 Since the foregoing authorities are consistent with New Mexico law, see Romero v. Giant Stop-N-Go of N.M., Inc., 2009-NMCA-059, ¶ 7, 146 N.M. 520, 212 P.3d 408 (stating that as a general rule, in the absence of a special relationship, a person does not have a duty to protect a person from the criminal acts of a third person), I would reverse the district court order without resorting to the PLCAA.

MICHAEL E. VIGIL, Judge




Certiorari Denied, October 31, 2014, No. 34,868



CHARLES E. MARTIN and PATRICIA G. MARTIN, Plaintiffs-Appellants,

v.COMCAST CABLEVISION CORPORATION OF CALIFORNIA, LLC,

Defendant-AppelleeDocket No. 32,199 (filed August 12, 2014)

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTYSHERI A. RAPHAELSON, District Judge

J. RONALD BOYDSanta Fe, New Mexico

for Appellants

EDWARD RICCOROBERT L. LUCERO

RODEY, DICKASON, SLOAN, AKIN & ROBB, P.A.

Albuquerque, New Mexicofor Appellee

Opinion

Michael D. Bustamante, Judge1 Charles and Patricia Martin (col-lectively, Appellants) sued Comcast Ca-blevision Corporation of California, LLC (Comcast) for trespass. Having prevailed in the district court, they now appeal the amount and nature of the damages awarded. Appellants argue that the district court erred in awarding a lower amount for statutory rent than they requested and in not awarding restitution for unjust enrich-ment or punitive damages. We affirm.BACKGROUND2 Appellants live on a residential lot located in White Rock, New Mexico. The property is burdened by an easement along its east boundary within which stand two utility poles. Two cables—one for electric power and one for telephone service—were strung on the poles. In early May 1999 Mr. Martin noticed that a third cable, which he identified as a cable television line, had been strung on the poles without his knowledge or permission. The date the third cable was installed is unknown. For ease of reference and because the electrical and telephone cables are not at issue here, we will refer to the television cables as “the cable(s).”3 Mr. Martin immediately objected to the presence of the cable to Mickelson Me-dia, the predecessor in interest to Comcast.

Roughly a month later, Mr. Martin deliv-ered to Mickelson Media a letter demand-ing payment of rent of $800 per month or removal of the cable. Later he proposed an alternate pricing scheme in which the rent amount would be decreased or elimi-nated depending on Mickelson Media’s satisfaction of certain conditions, such as placing the cable underground. After Mr. Martin also threatened to remove the cable himself using a “pneumatic rotary cutter,” Mickelson Media obtained an injunction barring Mr. Martin from removing the cable. At least one additional cable was later installed.4 Comcast purchased Mickelson Media in 2000 or 2001 and became the owner of the cables. Mr. Martin continued to object to the presence of the cables and ultimately filed the present suit in 2009. After a bench trial, the district court entered written findings of fact and conclusions of law in which it granted Appellants’ request for ejection of the cables from their prop-erty, required all Comcast cable television cables in Appellants’ subdivision to be buried, and awarded Appellants damages of $200 per month “for diminished use and enjoyment of their property” running from June 1999 until the cables are buried. Since it concluded that Comcast did not act wilfully and deliberately, it denied Ap-pellants’ request for $1 million in punitive damages. With a few exceptions, which are addressed in our discussion of Appellants’

arguments, Appellants do not challenge the district court’s findings of fact. We therefore do not detail the unchallenged findings. An unchallenged finding of the district court is binding on appeal. See Stueber v. Pickard, 1991-NMSC-082, ¶ 9, 112 N.M. 489, 816 P.2d 1111.5 Finally, we note that the parties stipu-lated to amendment of the judgment to re-flect certain damages noted in the district court’s findings of fact but omitted from the conclusions of law and final judgment. The district court entered a finding of fact to the effect that Appellants are entitled “to collect statutory rent from [Comcast of] $200 per month.” But neither the conclu-sions of law nor the final judgment reflect this finding. Hence, after mediation of this issue, the parties agreed that the judgment should be modified to reflect the district court’s finding of fact and that Appellants could challenge the amount of the statu-tory rent on appeal.DISCUSSION6 Appellants raise three issues on appeal. First, they maintain that the district court should have awarded them statutory rent of $800 per month, rather than $200 per month. Second, they argue that the district court erred in not ordering Comcast to pay $2000 per month as restitution for its unjust enrichment. Third, Appellants argue that it was error to not award puni-tive damages. We address each argument in turn.Amount of Statutory Rent7 As outlined above, the parties stipu-lated that the district court’s conclusions of law and the final judgment should have included an award for statutory rent in addition to the damages awarded for loss of enjoyment. They also stipulated that Appellants could appeal the amount of statutory rent awarded. Consistent with the stipulation, Appellants’ first argument is that the district court erred in finding Comcast liable for statutory rent in the amount of $200 per month, rather than the $800 per month that Appellants requested. They argue that the higher amount should have been awarded because “[n]obody under New Mexico law can control the rent [they] ask for” and “[t]he $800 per month rent is reasonable, considering the trouble and expense Defendant has put [Appellants] through.” Appellants rely on NMSA 1978, Section 42-4-9 (1907), which states that “[i]f the plaintiff prevail[s in an ejectment action], he shall recover for damages the value of the rents and profits of such premises.” Since this language



http://www.nmcompcomm.us/Advance Opinionsdoes not state whether the value should be based on an objective standard or a subjective standard, Appellants maintain that the district court should have ordered the amount set by Appellants.8 Appellants’ position—that their subjective assessment of appropriate rent must be honored—is contrary to the purpose behind damages in ejectment, which is compensation of the rightful possessor. See 28A C.J.S. Ejectment § 239 (2014) (“Compensation constitutes the purpose and basis of damages in actions or proceedings to recover mesne profits or damages in ejectment.”); Dan B. Dobbs, Law of Remedies § 1.1, at 3 (2d ed. 1993) (“The damages remedy is a money remedy aimed at making good the plaintiff ’s losses.”). It is also contrary to the general rule that “compensation is ordinarily the fair or reasonable rental of the land for the time . . . the defendant was in wrongful possession.” 28A C.J.S. Eject-ment § 239 (2014); accord Hertz v. Hertz, 1983-NMSC-004, ¶ 39, 99 N.M. 320, 657 P.2d 1169 (remanding to the district court to determine whether there had been an ouster of a cotenant and, if so, to “con-sider[] the fair rental value of the property” in determining the amount owed to the ousted cotenant); Dobbs, supra, § 5.8(2), at 530 (“The rental market value of the land . . . represents the value of possession or use.”). Finally, it runs against the principle that an award of damages must be based on evidence adduced at trial, the corollary to which is that the amount of damages is an objective measure. See lain Sanchez v. Mar-tinez, 1982-NMCA-168, ¶ 20, 99 N.M. 66, 653 P.2d 897 (“A party seeking to recover damages has the burden of proving the existence of injuries and resulting damage with reasonable certainty.”); Dobbs, supra, § 5.8(2), at 530 (“Rental value is ordinarily an objective measure, based on an estimate of the price others would pay to rent the land, not on what the trespasser personally would pay.”).9 Here, Mr. Martin testified that he asked Comcast for $800 per month “to get[] them to . . . remove the cable from [his] yard.” He specified that the purpose of his fee schedule was to get Comcast to remove their equipment, “not to collect rent.” He also stated that he selected the $800 amount because he “wanted it to be big enough so it was enough trouble for them to alleviate this problem by remov-ing this cable from my property. I do not want to rent an easement.” Thus, by Mr. Martin’s own admission, $800 per month

is an amount a tenant would find so unrea-sonable that it would prefer to remove the cables than keep them in place. We discern no error in the district court’s rejection of this amount. Unjust Enrichment10 Appellants next argue that the dis-trict court should have awarded restitution for Comcast’s unjust enrichment in the form of a portion of the profits Comcast earned by providing cable service while the cables ran across Appellants’ property. They base this contention on the fact that the district court found that “[f]or the period of time Defendant and its predeces-sor have been trespassing, they have been utilizing [Appellants’] property for their financial gain, i.e., unjustly enriched. Their enrichment has been at least $2,000 per month.” In spite of this finding, the district court did not enter a conclusion related to restitution and the final judgment does not include an order for restitution.11 “The restitutionary goal is to pre-vent unjust enrichment of the defendant by making him give up what he wrong-fully obtained from the plaintiff.” Dobbs, supra, § 1.1, at 4. Damages for unjust enrichment differ from compensatory damages in that “[t]he measure of com-pensatory damages is the plaintiff ’s loss or injury, while the measure of restitution is the defendant’s gain or benefit.” Cent. Sec. & Alarm Co. v. Mehler, 1996-NMCA-060, ¶ 12, 121 N.M. 840, 918 P.2d 1340; see Dobbs, supra, § 1.1, at 4. Restitution is an equitable remedy. See Arena Res., Inc. v. Obo, Inc., 2010-NMCA-061, ¶ 15, 148 N.M. 483, 238 P.3d 357.12 Because the district court entered a finding of fact specifically on unjust en-richment, including the amount by which Comcast was enriched, it is possible that omission of a corresponding conclusion of law and order for restitution was an over-sight as Appellants argue. Nevertheless, we conclude that restitution in the form of profits is not appropriate in this case and therefore affirm. See Westland Dev. Co. v. Romero, 1994-NMCA-021, ¶ 2, 117 N.M. 292, 871 P.2d 388 (“An appellate court will affirm a lower court’s ruling if right for any reason.”). See Cont’l Potash, Inc. v. Freeport-McMoran, Inc., 1993-NMSC-039, ¶ 26, 115 N.M. 690, 858 P.2d 66 (stating that while it is within the district court’s discretion to award equitable remedies, “[s]uch discretion is not a mental discretion to be exercised as one pleases, but is a legal discretion to be exercised in conformity with the law”).

13 Here, since nothing was taken from the land, Comcast’s gain was simply the rent-free use of Appellants’ land. Appel-lants’ argument rests on the premise that Comcast benefitted unjustly because it earned income by providing cable service to customers using the lines crossing Appellants’ property. But the provision of cable television and resulting income were the product of Comcast’s business enterprise and not the use of Appellants’ land. See Dobbs, supra, § 5.9, at 533 (“If the defendant should be liable to make restitution of gains, they should be gains identified with the land, not gains resulting from his enterprise.”). Thus, the benefit to Comcast is better understood as the sav-ings it realized by using Appellants’ prop-erty without paying for the privilege, i.e., the rental value of the land. See 42 C.J.S. Implied Contracts § 9 )2014( (“A ‘benefit’ for purposes of an unjust enrichment claim is any form of advantage that has a measurable value including the advantage of being saved from an expense or loss.”); Restatement (Third) of Restitution and Unjust Enrichment § 40 cmt. b (2011) (stating that “[the] more common form [of interference with property] is that the defendant has made a valuable use of the [owner’s] property without paying for it” and that “[t]o the extent that the defen-dant’s unjust enrichment may be identified with ordinary rental value, the owner’s entitlement to restitution is captured in the claim to damages for ‘use and occupa-tion.’”); cf. Peters Corp. v. N.M. Banquest Investors Corp., 2008-NMSC-039, ¶ 32, 144 N.M. 434, 188 P.3d 1185 (“The remedy [of disgorgement] may not be used punitively, and thus a causal connection must exist between the breach and the benefit sought to be disgorged.”).14 Because Appellants were awarded the rental value of the land in compen-satory damages, an additional award of rent for unjust enrichment would be duplicative. “New Mexico does not allow duplication of damages or double recovery for injuries received.” Hale v. Basin Motor Co., 1990-NMSC-068, ¶ 20, 110 N.M. 314, 795 P.2d 1006; see Cent. Sec. & Alarm Co., 1996-NMCA-060, ¶ 12 (“The plaintiff may be able to pursue several theories of recovery; if liability is found on each, the plaintiff would be required to make an election among awards if duplication or double recovery would otherwise result.”). We conclude that Appellants are not en-titled to an additional award of rent for unjust enrichment.



http://www.nmcompcomm.us/Advance Opinions15 Appellants rely on the concept of “mesne profits” to support their contention that Comcast should pay $2000 per month of trespass on their property. “Mesne prof-its” are “the profits which accrue between two given times—and [are] defined as the value of use or occupation of land dur-ing the time it is held by one in wrongful possession of it.” 25 Am. Jur. 2d Ejectment § 49 (2014). We are unpersuaded by Ap-pellants’ argument. There is nothing about mesne profits that exempts them from the principle discussed above, which is that a plaintiff is entitled to no more than the amount associated with the benefit derived from the wrongful use of the property itself. See Dobbs, supra, § 5.8(2), at 531 (stating that cases in which “the trespasser’s profits from occupation of the land exceed the rental value . . . raise difficult problems in determining how much of the ‘profit’ is due to the defendant’s labor and how much is due to the plaintiff ’s property”); cf. 66 Am. Jur. 2d Restitution and Implied Contracts § 2 )2014( (“The purpose of restitution-based claims, such as unjust enrichment, is not punitive.”); Krejci v. Capriotti, 305 N.E.2d 667, 670 (Ill. App. Ct. 1973) (“The trial judge could therefore accurately determine the profits wrongfully derived from the use of the land by measuring the fair market rental value for the period of the trespass.”). Thus, we conclude that Appellants are not entitled to a portion of Comcast’s profits over and above the amount awarded for rental of their property.Punitive Damages16 Finally, Appellants argue that the district court erred when it denied their request for punitive damages. They maintain that, although the district court specifically concluded that Comcast had not acted “willfully and deliberately,” other findings indicate behaviors that qualify for punitive damages. They also point to evidence in the record that they believe supports an award of punitive damages. We disagree that the district court’s find-ings are inconsistent with its conclusion or that the evidence in the record requires an award of punitive damages.17 “We review a [district] court’s decision not to award punitive damages for abuse of discretion, and we will only reverse that decision if it is contrary to logic and reason.” Peters Corp., 2008-NMSC-039, ¶ 43 (internal quotation marks and citation omitted). “In New Mexico, it is well settled that because the limited purpose of punitive damages is

to punish and deter persons from certain conduct, there must be some evidence of a culpable mental state.” Paiz v. State Farm Fire & Cas. Co., 1994-NMSC-079, ¶ 24, 118 N.M. 203, 880 P.2d 300 (internal quo-tation marks and citation omitted). Hence, such damages are appropriate “only when the wrongdoer’s conduct may be said to be maliciously intentional, fraudulent, oppressive, or committed recklessly or with a wanton disregard of the plaintiffs’ rights.” Green Tree Acceptance, Inc. v. Layton, 1989-NMSC-006, ¶ 9, 108 N.M. 171, 769 P.2d 84 (internal quotation marks and citation omitted); see UJI 13-1827 NMRA. The Uniform Jury Instructions provide further guidance on the conduct that warrants punitive damages: “Mali-cious conduct is the intentional doing of a wrongful act with knowledge that the act was wrongful. Willful conduct is the intentional doing of an act with knowledge that harm may result. Reckless conduct is the intentional doing of an act with utter indifference to the consequences.” UJI 13-1827. “[P]unitive damages should only be awarded if the defendant’s culpability, after having paid compensatory damages, is so reprehensible as to warrant the im-position of further sanctions to achieve punishment or deterrence.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419 (2003).18 Appellants point to a number of findings as evidence that the district court found willful and deliberate conduct by Comcast. For instance, the district court found that Comcast had “deliberately disregarded” a provision in the franchise agreement requiring cables to be buried in certain neighborhoods and that after Mr. Martin contacted Comcast to request removal of the cables, they were “uncoop-erative and dismissive of his protest.” The district court also found that Comcast was aware that it did not have permission to install cables on Appellants’ property as early as May 1999 and that because Com-cast violated the franchise ordinance and pole license, its actions were illegal. None of the findings identified by Appellants involve the type of findings necessary to support a punitive damages award because the findings do not pertain to the men-tal state required. We conclude that the district court’s conclusion that Comcast’s conduct was not willful and deliberate is not inconsistent with its other findings.19 As to Appellants’ argument that this Court should remand for entry of puni-

tive damages because there is evidence in the record supporting such an award, we note that “[t]he question on appeal is not whether there is evidence to support an alternative result but, rather, whether the [district] court’s result is supported by substantial evidence.” Bagwell v. Shady Grove Truck Stop, 1986-NMCA-013, ¶ 23, 104 N.M. 14, 715 P.2d 462. We therefore examine the record for evidence that Comcast’s conduct did not merit puni-tive damages rather than the evidence to which Appellants direct us. See id. (“The appellate court, in reviewing the [district] court[’s] decision, disregards all evidence and all inferences unfavorable to the [district] court’s result.”). The area vice president of Comcast testified that “[i]t was [Comcast’s] understanding that there was a utility easement that we were able to use [on Appellants’ property].” He also indicated that, at the time Comcast responded to Appellants’ request to re-move the cables and based on advice by Comcast’s attorney, he understood that Los Alamos County had granted Com-cast the right to “use the Martin property for its cables[.]” Comcast’s construction coordinator testified that after Appellants made their objection to the cables known, he obtained a plat of the property from the county and discussed it with the construc-tion manager. He testified that he under-stood the plat to indicate that the poles were situated in a utility easement and that “the cable provider, with a franchise agreement within the municipality, would have a right to be within that utility cor-ridor.” This evidence supports the district court’s conclusion that Comcast’s conduct was not willful or deliberate. See Padilla v. Lawrence, 1984-NMCA-064, ¶ 29, 101 N.M. 556, 685 P.2d 964 (affirming denial of punitive damages where “[t]here [was] substantial evidence in the record to sup-port the [district] court’s refusal to award [them]”). The district court did not err in denying Appellants’ request for punitive damages.CONCLUSION20 For the foregoing reasons, we affirm.21 IT IS SO ORDERED.

MICHAEL D. BUSTAMANTE, Judge

WE CONCUR:JAMES J. WECHSLER, JudgeM. MONICA ZAMORA, Judge






SHANNON SPOON, individually and as Personal Representative of Daniel Spoon, Deceased,

Plaintiff-Appellee,v.

ARTURO MATA and BURN CONSTRUCTION COMPANY, INC.,Defendants,

andKORINA FLORES, as Parent, Guardian and

Next Friend of minor Noah Spoon,Intervenor-Appellant

Docket No. 32,674 (filed August 18, 2014)

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTYJANE SHULER GRAY, District Judge

DICK A. BLENDENBLENDEN LAW FIRM

Carlsbad, New Mexico

C. BARRY CRUTCHFIELDTEMPLEMAN & CRUTCHFIELD, P.C.

Lovington, New Mexicofor Appellee

KENNETH D. DUGANMARTIN, DUGAN & MARTIN

Carlsbad, New Mexicofor Appellant

MARK D. STANDRIDGEJARMIE & ASSOCIATES

Las Cruces, New Mexico

DAVID A. GONZALESALLEN, SHEPHERD, LEWIS & SYRA,

P.A.Albuquerque, New Mexico

for Amicus Curiae New Mexico Defense Lawyers Association

MICHAEL B. BROWDEAlbuquerque, NM

DAVID J. STOUTAlbuquerque, NM

for Amicus Curiae New Mexico Trial Lawyers Association

Opinion

Cynthia A. Fry, Judge1 Korina Flores (Petitioner) appeals the district court’s order denying her petition to intervene and to be appointed co-personal representative in a wrongful death action brought by Plaintiff, Shannon Spoon, wife of Decedent, Daniel Spoon, who was the father of Petitioner’s child (Child). Petitioner sought to intervene to assert Child’s loss of consortium claim and further sought appointment as co-personal representative in the wrongful death action in order to protect Child’s interests as a statutory beneficiary. Petitioner argued that Child’s interests were not adequately represented by Spoon’s counsel because a

conflict of interest existed due to Spoon’s role as personal representative and her pursuit of individual claims against De-fendant.2 We agree with Petitioner that the district court erred in not permitting Pe-titioner to intervene to assert Child’s loss of consortium claim. However, we disagree that there is currently a conflict of interest as we understand that phrase. As we ex-plain below, a conflict of interest is some-thing that affects an attorney’s relationship with his or her client, and no such conflict has yet developed in the relationship be-tween Spoon and her attorney. Instead, what exists in this case may be called an “adversity of interest” between Spoon and Child. We conclude that this adversity of interest cannot be resolved by appointing

Petitioner as a co-personal representative, as Petitioner argues. Accordingly, although we reverse and remand to allow Petitioner to intervene to assert Child’s loss of con-sortium claim, we affirm the district court’s decision denying Petitioner’s appointment as co-personal representative.BACKGROUND3 Decedent Daniel Spoon died as a result of a motorcycle accident allegedly caused by an employee of Defendant Burn Con-struction Company, Inc. Decedent was married to Shannon Spoon at the time of his death. In the year preceding his death, Decedent had also fathered Child with Petitioner.4 Spoon filed suit shortly after the ac-cident against the driver of the vehicle and Burn Construction. Spoon was appointed the personal representative for purposes of the wrongful death action and also pur-sued claims, in her individual capacity, for bystander recovery and loss of consortium. At the time the complaint was filed, Spoon did not name Child as an heir of Decedent in the complaint because Decedent’s pater-nity had not yet been established.5 Once paternity was established, Peti-tioner moved to intervene in the lawsuit to assert Child’s claim for loss of consortium and to represent Child’s interest in the wrongful death action. In order to protect Child’s interest, Petitioner sought appoint-ment as a co-personal representative with Spoon. Following a hearing, the district court found that there was no evidence that Child’s interests in the wrongful death action were not adequately represented. The district court further found that Spoon’s counsel did not have a conflict of interest in representing Spoon both in her capacity as personal representative in the wrongful death action and in her individual capacity in regard to her loss of consortium and bystander recovery claims. The district court accordingly denied Petitioner’s motion to intervene. Petitioner appeals.DISCUSSION6 Petitioner’s arguments on appeal can be succinctly grouped into two main contentions. First, she claims that the district court erred in not allowing her to intervene to assert Child’s loss of consor-tium claim. Second, she contends that the district court erred in not allowing her to serve as co-personal representative due to her belief that Spoon’s counsel could not adequately represent Child’s interest in the wrongful death action. We address these issues in turn.



http://www.nmcompcomm.us/Advance OpinionsI. The District Court Erred in Not

Permitting Petitioner to Intervene to Assert Child’s Loss of Consortium Claim

7 Spoon appeared to concede in briefing that Petitioner should have been permitted to intervene in the suit to assert Child’s loss of consortium claim. We appreciated counsel’s forthrightness in this matter because we agree that there was no basis to preclude Petitioner’s intervention to pursue Child’s individual loss of consor-tium claim. See Rule 1-024 NMRA. At oral argument, however, Spoon’s counsel stated that it was Spoon’s position that Child should not be permitted to intervene, but counsel provided no substantive argu-ment as to why it would be impermissible. Because counsel has offered no reason to preclude Child’s intervention and because we see none ourselves, Petitioner shall be permitted to intervene for this purpose on remand.II. The District Court Properly

Denied Petitioner’s Motion Seeking Appointment as Co-Personal Representative

Standard of Review8 Before stating the standard of review, we provide context and distinguish be-tween the terms “conflict of interest” and “adversity of interest” because Petitioner often conflates these two differing con-cepts. First, insofar as the issues in the case are concerned, a conflict of interest is one that arises within the attorney/client relationship. See Rule 16-107(A) NMRA (defining a conflict of interest as impacting an attorney’s representation of one or more clients). In a wrongful death action, the attorney/client relationship exists between the personal representa-tive and his or her attorney. Spencer v. Barber, 2013-NMSC-010, ¶ 9, 299 P.3d 388. We therefore consider the relation-ship between the personal representative and his or her attorney when considering the attorney’s responsibilities of loyalty, confidentiality, and conflicts. Id.9 Although a statutory beneficiary is not in an attorney/client relationship with the attorney of the personal representative, the statutory beneficiary is an intended beneficiary of the attorney/client rela-tionship that exists between the personal representative and his or her attorney. See id. ¶ 10. Because a statutory beneficiary is an intended beneficiary of this attorney/

client relationship, both the attorney and the personal representative owe a duty to act with reasonable care regarding the interests of the statutory beneficiary. Id. ¶¶ 8, 13. Thus, where there is a significant risk that an attorney’s representation of the personal representative will be materially limited by the attorney’s responsibilities to the statutory beneficiary, a conflict of interest may exist between the personal representative and his or her attorney. See Rule 16-107 (stating that a concurrent conflict of interest exists where there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to a third person).10 In this case, however, Petitioner does not assert that the attorney’s representation of Spoon in her individual or representa-tive capacities will be materially limited by the attorney’s duties to Child as a statutory beneficiary. Instead, Petitioner asserts that Child’s interests will not be protected by Spoon’s or her counsel’s representation. Thus, Petitioner is not asserting that a con-flict of interest exists between Spoon and her counsel but rather what would more appropriately be termed an “adversity of interest” between Child and Spoon that Petitioner argues should preclude Spoon from serving as personal representative.11 Having established that Petitioner is asserting the existence of an adversity of interest rather than a conflict of interest, in order to determine the standard of re-view, we first clarify our understanding of Petitioner’s argument as to the remedy she seeks. Petitioner is often unclear in briefing as to whether Spoon should be disqualified from acting as personal representative in general or whether Petitioner simply seeks appointment as co-personal representa-tive. After extensive review of Petitioner’s brief, we understand Petitioner to request that her counsel be permitted to represent Child’s interests as a statutory beneficiary and in his individual claims while Spoon’s counsel represents Spoon’s interests as a statutory beneficiary and in her individual claims.12 Petitioner frames her argument under the rule pertaining to mandatory intervention. See Rule 1-024(A)(2). Under this framework, Petitioner argues that if we conclude that Spoon cannot adequately represent Child’s interest in the wrongful death action due to an adversity of inter-

est, we should order that Petitioner be appointed co-personal representative to protect Child’s interest. Id. (“[A]nyone shall be permitted to intervene in an action . . . when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by exist-ing parties.”). This Court has previously disapproved of—but not foreclosed—the use of mandatory intervention by a wrongful death statutory beneficiary. See Dominguez v. Rogers, 1983-NMCA-135, ¶ 16, 100 N.M. 605, 673 P.2d 1338 (“We do not believe the legislature intended Rule [1-0]24[(A)] to operate as a device by which a party could thwart the representa-tive form of action authorized in wrongful death suits. Otherwise, there would be no reason why every statutory beneficiary could not intervene as a matter of right.”). Regardless, because we have already con-cluded that Petitioner may intervene to assert Child’s loss of consortium claim, we review Petitioner’s arguments according to the merits of the alleged adversities of interest that Petitioner asserts, not under the test for mandatory intervention.1

13 Even though we are addressing whether an adversity of interest exists sufficient to preclude Spoon’s serving as the personal representative, we apply the de novo standard of review applicable to the determination of whether a conflict of interest exists. See State ex rel. Children, Youth & Families Dep’t v. Tammy S., 1999-NMCA-009, ¶ 19, 126 N.M. 664, 974 P.2d 158 (stating we review whether a conflict of interest exists de novo). Although we distinguished above between an adversity of interest and a conflict of interest, we believe the determination of whether ei-ther exists is sufficiently similar to warrant application of the same standard of review. Accordingly, we review Petitioner’s argu-ment de novo.A. Adversity of Interest14 Petitioner argues that an adversity of interest exists because Spoon’s conduct in the related probate proceedings evinces a hostility toward Child’s rights as an heir and because Spoon’s individual claims against Defendant make Spoon’s and Child’s interests in the distribution of any

1 Petitioner also argues that Spoon’s attorney’s representation on behalf of the statutory beneficiaries has been “inadequate.” The district court rejected this argument, and we see no reason to second-guess that assessment.



http://www.nmcompcomm.us/Advance Opinionsrecovery adverse to one another. Petitioner contends that these adversities of interest can be resolved by disqualifying Spoon from representing Child’s interest in the wrongful death action and appointing Petitioner co-personal representative.15 Petitioner first contends that the facts surrounding Spoon’s appointment as personal representative for the estate—not the wrongful death action—establishes an adversity of interest. Petitioner claims that before paternity was established, Spoon sought appointment as the executor of De-cedent’s estate without notifying Child and represented to the probate court that she was aware of no other heirs besides herself and Decedent’s mother. Petitioner con-tends that this conduct by Spoon indicates that Spoon’s interests are directly adverse to Child’s and, therefore, she cannot fulfill her duties as the personal representative in the wrongful death action.16 We are unpersuaded that this con-duct indicates an adversity of interest suffi-cient to preclude Spoon from representing Child as the personal representative. Un-der the Act, Spoon is required to distribute any recovery under the claim in strict ac-cordance with the statutory distribution provisions. NMSA 1978, § 41-2-3 (2001); Spencer, 2013-NMSC-010, ¶ 22 (“[T]he personal representative has a nondiscre-tionary duty to distribute the wrongful death proceeds in the ratio prescribed by the [Act].”). Under these provisions, Spoon and Child will each receive fifty percent of any recovery based on the wrongful death action. Section 41-2-3(B).17 During the time Spoon sought appointment as personal representative of the estate, test results confirming that Decedent was Child’s father were still being processed. Once paternity was established, Spoon consistently maintained, both below and on appeal, that Child became entitled to his statutory share of any wrongful death recovery and that she intends to fulfill her duty toward him. Spoon’s acknowledg-ment of this duty stands in sharp contrast to the facts in Spencer, where the personal representative’s challenge to another statu-tory beneficiary’s entitlement to his share of the wrongful death proceeds created a conflict of interest.2 2013-NMSC-010, ¶ 25. Accordingly, we do not agree with Pe-titioner that Spoon’s conduct in the probate proceedings creates an adversity of interest

that requires her disqualification or the ap-pointment of a co-personal representative.18 Second, as to Petitioner’s argument that Spoon’s pursuit of her individual claims conflicts with her role as personal represen-tative, we briefly summarize the nature of the adversity of interest that Petitioner al-leges. Petitioner argues that Spoon, invested with settlement authority in her capacity as personal representative, has an incentive to allocate settlement proceeds toward her in-dividual claims and away from the wrongful death action. Petitioner claims that this cre-ates an adversity of interest necessitating the appointment of Petitioner as co-personal representative to protect Child’s interest because otherwise Spoon will have every incentive to maximize her recovery to the detriment of Child.19 We recognize that there is an ad-versity of interest but conclude that in this context it does not require that Spoon be removed. We cannot speculate whether Spoon will ultimately comply with her statutorily mandated responsibilities to Child in the event of a recovery. As we discuss below, however, her failure to do so would expose both her and her attorney to significant liability. Here, we merely conclude that the fact that a personal representative is also pursuing individual claims in the suit is not a sufficient basis by itself to presume that the interests of the personal representative and the statutory beneficiaries are so adverse as to preclude the individual from representing the statu-tory beneficiaries’ interests in the action. Cf. Gresham v. Strickland, 784 So.2d 578, 581-82 (Fla. Dist. Ct. App. 2001) (stat-ing that “[h]ostility or tension between a trustee and potential beneficiaries” or “dis-agreements over litigation” are not grounds for removal of a personal representative).20 We recognize that this adversity of interest between Child and Spoon could conceivably evolve into a conflict of inter-est between Spoon and her attorney with respect to Spoon’s individual claims, on the one hand, and her claim as a statutory beneficiary of the wrongful death estate, on the other hand. For example, if the tort-feasor’s insurer were to offer policy limits that could not reasonably compensate all claims, then Spoon’s attorney may find that his representation of Spoon’s individual claims materially limits his responsibilities to her wrongful death action, or vice versa.

But such a conflict has not yet developed in this case and may never develop.21 As amici curiae have pointed out, where one of the beneficiaries is a minor, it is often the practice to seek court approval of any settlement and appointment of a guardian ad litem to advise the district court on the appropriateness of the allocation of settlement amounts. See Collins ex rel. Col-lins v. Tabet, 1991-NMSC-013, ¶¶ 30-31, 111 N.M. 391, 806 P.2d 40 (“[W]e have no reason to doubt [] that it is the general practice in New Mexico for a guardian ad litem to be appointed to represent the inter-ests of a minor in any proceeding to secure court approval of a settlement involving the minor. . . . The guardian ad litem thus may fulfill the dual role of providing informa-tion to the court to enable it to pass on the reasonableness of a settlement, while at the same time protecting the ward’s interests by zealous advocacy and thorough, competent representation.”). We encourage the parties to consider this process in the event that a settlement is reached.B. Appointing Co-Personal

Representatives Would Not Remedy Any Potential Adversity of Interest

22 Although we conclude that the adver-sity of interest we have recognized does not require removal of Spoon as the personal representative, we acknowledge that Peti-tioner’s concerns are not entirely unfounded. See Home Ins. Co. v. Wynn, 493 S.E.2d 622, 626 (Ga. Ct. App. 1997) (holding that a per-sonal representative breached her fiduciary duty to wrongful death beneficiaries by al-locating settlement proceeds in such a way as to prioritize her individual claims over the wrongful death action). We are mindful that disagreements may arise between the beneficiaries themselves and between the beneficiaries and the personal representative in wrongful death actions regarding the pros-ecution of the claim. See generally Holmes v. McClendon, 76 S.W.3d 836, 839 (Ark. 2002); Spencer, 2013-NMSC-010, ¶ 2. We therefore also consider Petitioner’s argument that her concerns would be remedied by the appoint-ment of a co-personal representative.23 Petitioner relies on Dominguez and Lajeuenesse to argue that the appoint-ment of a co-personal representative is an accepted practice in New Mexico. In re Estate of Lajeuenesse, ex rel. Boswell v. Bd. of Regents of UNM, 2013-NMCA-004,

2 The personal representative’s actions in Spencer created a conflict of interest, in part, because once the attorney learned that the personal representative was disputing a statutory beneficiary’s entitlement to recovery, the attorney could no longer simply distribute the proceeds of the wrongful death action because doing so would violate his duties to his client. Id. ¶¶ 24-25.



http://www.nmcompcomm.us/Advance Opinions292 P.3d 485, ¶ 17 (noting that “[e]ven if there were co-personal representatives, they serve the singular purpose of bringing the wrongful death action”); Dominguez, 1983-NMCA-135, ¶ 11 (observing that the then applicable version of Section 41-2-3 refers to the appointment of “personal representative or representatives” (internal quotation marks omitted)). Petitioner’s argument utilizes some selective use of quotations. For instance, the only portion of Dominguez that could support Peti-tioner’s argument is a quotation from an earlier version of the wrongful death statute stating that a wrongful death action “shall be brought by and in the name [or names] of the personal representative [or repre-sentatives].” Dominguez, 1983-NMCA-135, ¶ 11 (citing Section 41-2-3 (Repl. Pamp. 1982)). We reject Petitioner’s reliance on an earlier version of the statute cited in Dominguez, especially where the statute, in its current form, could be read to foreclose Petitioner’s argument because an amend-ment explicitly removed the reference to multiple personal representatives. Section 41-2-3 (stating that a wrongful death action “shall be brought by and in the name of the personal representative of the deceased person” (emphasis added)). Furthermore, even when the statute did provide for mul-tiple representatives, the Dominguez Court stated that “[t]he reference in the wrongful death statute to the possibility of multiple representatives does not automatically give potential intervenors the right to join [as co-personal representatives],” which is precisely what Petitioner is seeking in this case. 1983-NMCA-135, ¶ 11.24 We are similarly unpersuaded that Lajeuenesse supports Petitioner’s argument. In stating that it is possible to designate more than one personal representative, this Court cited to Wachocki v. Bernalillo County Sheriff ’s Department, 2010-NMCA-021, ¶ 2, 147 N.M. 720, 228 P.3d 504. In Wachocki, the “co-personal representatives” were parents of the decedent and, more importantly, represented by the same at-torney. Id. While this practice could easily be called into question by both the statutory language and our case law, the multiple representation in Wachocki was never chal-lenged. See In re Estate of Lajeuenesse, 2013-

NMCA-004, ¶¶ 16-17 (emphasizing that the personal representative is the “single person” who brings the wrongful death ac-tion and noting the Legislature’s use of the “singular” in designating who may bring the action). Regardless, we note the significant difference between the prosecution of the claim by two parents of a deceased child represented by one attorney and the dual appointment Petitioner seeks in this case.25 Petitioner seeks appointment as co-personal representative due to the ad-versity of interest between Child, as a statu-tory beneficiary, and Spoon, as personal representative. We fail to see how allowing Petitioner—who also has an individual claim against Defendant—to serve as co-personal representative would remedy this adversity. If Petitioner is appointed co-personal representative, Petitioner will owe the same duties of care to Spoon as a statutory beneficiary that Spoon, in her capacity as personal representative, owes to Child. See Spencer, 2013-NMSC-010, ¶ 8 (“The personal representative has a duty to act with reasonable care regarding the interests of the statutory beneficiaries[.]”). Petitioner fails to explain how placing her-self into the very adversity that she argues should disqualify Spoon would remedy the adversity she argues already exists.26 As we noted above, Petitioner fore-sees a situation in which Spoon’s attorney represents her interests in the wrongful death action and in her individual claims, while Petitioner’s attorney would represent Child’s similar respective interests. Along these lines, Petitioner argues that Child has the right to choose his own counsel to represent his interests in the wrongful death action and that a court should not override this right, absent compelling circumstances. See Chappell v. Cosgrove, 1996-NMSC-020, ¶ 7, 121 N.M. 636, 916 P.2d 838 (noting similar argument and quoting Ramsay v. Boeing Welfare Benefit Plans Comm., “The court is also mindful that a person’s right to select his own coun-sel, although not an absolute right, may be overridden only where compelling reasons exist.” 662 F. Supp. 968, 970 (D. Kan. 1987)). Petitioner contends that allowing Spoon’s counsel to prosecute the wrongful death action on Child’s behalf violates this right.

27 Although we agree with Petitioner that generally a litigant has the right to choose his or her own counsel, we conclude that the structure and purpose of the Wrong-ful Death Act militates against recognizing a right by statutory beneficiaries to prosecute the claim on their own behalf. As this Court recently stated, the personal representative “remains distinct from the beneficiaries as the party who must bring the wrongful death action and as the only party to the action pursuing the claims for damages that result from the injuries.” In re Estate of Lajeuenesse, 2013-NMCA-004, ¶ 12; see Dominguez, 1983-NMCA-135, ¶ 10 (“The personal representative is the only one who may bring the action.”). As the sole party pursuing the claims, the personal represen-tative also has the right to choose counsel. See Leyba, 1995-NMSC-066, ¶ 22 (noting that the personal representative is vested with control over litigation decisions); see also Brewer v. Lacefield, 784 S.W.2d 156, 158 (Ark. 1990) (stating that it is the duty of the personal representative to choose counsel to pursue the wrongful death action).28 This comports with the Legislature’s determination that the personal repre-sentative stands in place of the statutory beneficiaries in bringing a wrongful death action. See Chavez v. Regents of UNM, 1985-NMSC-114, ¶ 8, 103 N.M. 606, 711 P.2d 883 (“The personal representative is only a nominal party who was selected by the Legislature to act as the statutory trustee for the individual statutory beneficiaries.”). The Act’s purpose in utilizing a personal representative to “centralize the claims and prevent multiple and possibly contradictory lawsuits” presents a compelling reason to deny statutory beneficiaries the right to intrude on the role of an otherwise properly appointed personal representative. Id. ¶ 10; cf. Spencer, 2013-NMSC-010, ¶ 8 (“Statuto-ry beneficiaries are generally not permitted to join as parties in a wrongful death lawsuit because the personal representative is the beneficiary’s trustee[.]”); Mackey v. Burke, 1984-NMCA-028, ¶ 12, 102 N.M. 294, 694 P.2d 1359 (“If each potential beneficiary was considered a personal representative, the suits could be unending and contra-dictory.”), overruled on other grounds by Chavez, 1985-NMSC-114.3

3 Petitioner argues in the alternative that if she is not appointed co-personal representative, Spoon’s counsel should be precluded from taking any fees or costs from Child’s portion of the wrongful death recovery. The issue of which attorney is entitled to fees out of Child’s wrongful death recovery has been quite conspicuous throughout Petitioner’s arguments on appeal. At least one jurisdiction that has addressed this issue has held that an attorney hired by a beneficiary to protect his or her interests is hired at the beneficiary’s expense. Brewer, 784 S.W.2d at158-59. However, we think this issue, if it arises in the future course of litigation, should be addressed by the district court in the first instance.



http://www.nmcompcomm.us/Advance Opinions29 Furthermore, we believe any po-tential adversity of interest that arises can be remedied by applying well-established principles of New Mexico law, not by the appointment of co-personal representa-tives. As we stated above, both Spoon and her counsel owe a duty to Child to act with reasonable care regarding his inter-ests. Spencer, 2013-NMSC-010, ¶¶ 8-13. This includes their duties to ensure that Child receives a proper allocation of any recovery from the wrongful death action. Id. ¶ 22 (explaining that “the personal representative has a nondiscretionary duty to distribute the wrongful death proceeds in the ratio prescribed by the Wrongful Death Act”); Lebya, 1995-NMSC-066, ¶ 28 (holding that an attorney has a duty to “exercise reasonable care to ensure that the statutory beneficiaries actually receive the proceeds of any wrongful death action”). Failure to comply with these duties could potentially expose both Spoon and her counsel to significant legal liabilities. Spen-cer, 2013-NMSC-010, ¶ 10 (stating that where an attorney breaches his duty to the personal representative to render services with reasonable skill and care, the statu-tory beneficiary has a claim against the attorney); Dominguez, 1983-NMCA-135, ¶ 19 (recognizing that statutory beneficiaries can assert a cause of action against a per-sonal representative who fails to properly fulfill his or her statutory responsibili-ties). Proceeding in the face of a conflict of interest in the attorney’s relationship with his client, the personal representa-tive, without taking action to resolve the conflict can also constitute a breach of the attorney’s duty.4 Spencer, 2013-NMSC-010, ¶ 27. Finally, as our Supreme Court has recognized, a statutory beneficiary is not precluded from pursuing traditional tort claims such as misrepresentation, fraud, or collusion. Id. ¶ 5. We believe that the

risk of potential liability provides a strong incentive to a personal representative and his or her counsel to ensure that the statu-tory beneficiaries’ interests are properly protected.30 In sum, although we recognize that in some circumstances a personal repre-sentative’s interests can become adverse to those of the statutory beneficiaries such that action must be taken to resolve the adversity, we decline to hold as a matter of law that a statutory beneficiary with individual claims against the defendant is precluded from serving as the personal representative in a wrongful death ac-tion. While we conclude that Spoon can remain as the wrongful death personal representative, it is imperative that Spoon’s counsel remain vigilant to ensure that his representation of Spoon in both her individual and representative capacities does not run afoul of his duty to Child and that Spoon remain mindful of her statu-tory duties. Spencer, 2013-NMSC-010, ¶ 13; see also Holmes, 76 S.W.3d 836; Leyba, 1995-NMSC-066.CONCLUSION31 For the foregoing reasons, we re-mand to the district court for proceedings consistent with this opinion.32 IT IS SO ORDERED.

CYNTHIA A. FRY, Judge

I CONCUR:JAMES J. WECHSLER, Judge MICHAEL D. BUSTAMANTE, Judge (specially concurring).

Bustamante, Judge (specially concurring).33 I concur in the Opinion and the conclusion that there is not currently an adversity of interest that necessitates the removal of Shannon as personal repre-sentative or the appointment of Petitioner

as co-personal representative. I write separately to emphasize one particular animosity in this case that threatens to injure the interests of both statutory ben-eficiaries long before any adversity claimed by Petitioner will: the animosity between the attorneys.34 The record below, the briefing in this Court, and counsels’ oral argument all re-veal an unacceptable level of personal ran-cor. It has been disheartening to witness the attorneys unnecessarily exacerbate the animosity that is prone to otherwise exist between Shannon and Petitioner under these circumstances. I cannot know the cause of this undue animosity—perhaps there is a history of conflict between counsel; perhaps the potential for division of fees has overtaken common courtesy. Whatever the source, I fear that practically speaking, the relationship between the at-torneys has deteriorated to such an extent that the attorneys risk subjugating the interests of their respective clients to their own personal vendettas. Perhaps most concerning, I am not sure that counsel appreciate where their clients’ interests end and their own personal animosity begin.35 My concerns lead me to disagree with the Opinion’s suggestion that use of a guardian ad litem should be “considered” by the parties and the district court. In my view, the possibility that the attorneys can work together toward the best inter-est of their clients is so bleak that I would require the immediate appointment of a guardian ad litem to ensure that Child’s interests are protected. I do not condemn zealous advocacy. But zeal as an end unto itself can quickly come unmoored from the client’s best interest and risk, as this case demonstrates, pushing the parties further away from a swift and reasonable resolution of their case.

MICHAEL D. BUSTAMANTE, Judge

4 Proceeding in the face of a conflict without resolving the conflict can also result in serious disciplinary sanctions. See In re Montoya, 2011-NMSC-042, 150 N.M. 731, 266 P.3d 11 (indefinitely suspending attorney for, in part, proceeding with representation in wrongful death action despite clear conflicts of interest between his clients and improperly allocating settlement amounts).



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2155 Louisiana Blvd NEAlbuquerque, NM 87110

W. W. Atkinson Stephen J.E. Sprague(1910–1993) (1941–2003)

Telephone (505) 883-3070 | Fax (505) 889-3111www.AtkinsonKelsey.com

Robert P. Matteucci Jr.Robert P. Matteucci Jr.Patrick L. McDanielPatrick L. McDanielThomas C. MontoyaThomas C. MontoyaDenise E. ReadyDenise E. Ready

City Place | SuiteCity Place | Suite 2000 2000

CITY PLACE SUITE 20002155 LOUISIANA NE

P.O. BOX 3070

Albuquerque, New Mexico 87190 87190 87190

CITY PLACE | SUITE 20002155 LOUISIANA NEAlbuquerque, NM 87110P.O. BOX 3070 (87190-3070)

(505) 883-3070 Fax (505) 889-3111

e-mail: [email protected] web: www.atkinsonkelsey.com

Tatiana D. Engelmann attorney at law

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

(505) 321-4549 • [email protected]

Attorney at Law

601 Calle del Pajarito N.W.

Albuquerque, New Mexico 87114

TED C. BACA

Attorney at Law

601 Calle del Pajarito N.W.Albuquerque, New Mexico 87114(505) 321-4549 • [email protected]

Retired Chief District Court Judge

TED C. BACA

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http://www.AtkinsonKelsey.com


http://www.atkinsonkelsey.com



Documents

Sambrano v. Savage