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Summaries
of Recent New Mexico Appellate Opinions - Civil Cases
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Full Opinions - Hard
Copy
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Civil Cases: January 2008 (most
recent cases listed first)
Grygorwicz v. Trujillo, CA 27,419 (Wechsler) Jan 24, 2008
A defendant waives his claim of exemptions when he does not appeal from the foreclosure decree, and Rule 1-065.1 applies to writs of execution, not foreclosures.
Niederstadt v. Town of Carrizozo, CA, 26,838 (Fry) Jan 24, 2008
Where a person sued a police officer, who asked the town to defend him under the Tort Claims Act, and the town refused, and the plaintiff and officer later settled, and the officer assigned his rights against the town to the plaintiff, plaintiff did not need to give notice under the TCA to be able to recover under the assignment of rights because the notice provision applies only when a person is suing the governmental entity and here the plaintiff sued only the officer and the town had actual notice of the suit and refused to participate.
In re Yalkut, SC 29,396 (per curiam) Jan 23, 2008
Flat fees must be placed in an attorney’s trust account until they are earned, but the fact that they are not does not necessarily demonstrate an intent to misappropriate, even if the funds are used; suspension, rather than disbarment, is the appropriate sanction when an attorney’s conduct is not intentionally dishonest, but is instead erroneous; an attorney may be suspended for a definite period on conditions and when those conditions are not met, disciplinary counsel may call it to the Court’s attention.
In re Adoption of Rebecca M., CA 26,675 (Castillo) Jan 16, 2008
Trial court did not err in refusing to set aside an adoption granted to a domestic partner after the partners began disputing custody of the child borne by the other domestic partner; where the motion to set aside was before the same judge who earlier took the consent and that judge disclosed what he usually does and offered to step down and the moving party did not ask him to step down, there was no abuse of discretion in denying recusal; when an independent adoption proceeds by way of a request for placement, followed by a pre-placement study and adoption petition, and where the petition here was not filed until after the adoption decree, this was not a jurisdictional error because the district court had before it all the information required to be before it; neither equitable estoppel nor exceptional circumstances apply on the facts of this case.
Blancett v. Dial Oil Co., SC 30,035 (Serna) Jan 16, 2008
For purposes of venue statute, domestic corporation does not reside in a county solely because its registered agent resides in that county; general law is that domestic corporation resides at its principal place of business; because another subsection of the venue statute talks about where registered agents are and the subsection applicable to this case does not, that evinces a legislative intent that the general rule applies.
Leonard v. Payday Professional, CA 26,927 (Bustamante) Jan 10, 2008
Workers’ compensation judges do not have authority to grant injunctions and therefore WCJ did not err in refusing to grant injunction requiring an employer/insurer to pay for medical care when the employer/insurer appealed the issue and posted a supersedeas bond.
Bishop v. Evangelical Lutheran Good Samaritan Society, CA 25,510 (Alarid) Sep 4, 2007, on rehearing, Jan 10, 2008
Although the Continuing Care Act requires long-term care facilities to set increases in fees based on factors including a reasonable return on investment, because Defendant is a non-profit organization, that concept does not apply because non-profits are driven by missions and not economics, and Defendant did not breach contract with residents by increasing fees without considering return on investment; initial fee residents are charged is a matter of freedom of contract and is not regulated by CCA; Plaintiffs’ theory of continuing wrong was not presented to the trial court, who therefore correctly applied six-year statute of limitations to dates of increases in fees; prejudgment interest is allowed but only to a maximum of one full recovery of such interest; court could not credit Defendants with fee increases that could have been made but were not in certain years.
On rehearing, the Court limits the discussion to the issue of reasonable return, and then holds that similar language in contract must be interpreted in the same way; Court cannot affirm because facility did not base increases on economic necessity because there were no findings on that issue and no such theory was developed below.
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