|
Summaries
of Recent New Mexico Appellate Opinions - Civil Cases
|
|
|
Full Opinions - Hard
Copy
|
Civil Cases: February 2008 (most
recent cases listed first)
Guest v. Berardinelli, CA 26,813 (Pickard) Feb 29, 2008
Trial court properly dismissed on summary judgment Plaintiff’s claims against attorneys for malicious abuse of process, interference with contractual and prospective contractual relations, and prima facie tort, because the attorneys had probable cause that the prior suit against Plaintiff (also an attorney) was supported by their investigation of the facts and law and they did not need to get the attorney’s views on the case before they filed suit, because Plaintiff’s loss of the contractual relations was undisputed to be for reasons other than the attorney’s prior suit, and because the prima facie tort claim was another way of litigating the MAP claim and PFT was not intended to be a substitute for another claim that could not stand on its own legs; although there were many disputed facts in the case, none were genuine issues of material fact because none would show that there was not probable cause at the time of the prior suit; briefs have to contain citations to the record and reply briefs cannot raise new issues.
Truong v. Allstate Ins. Co., CA 26,329 (Bustamante) Nov 30, 2007, on rehearing, Feb 25, 2008
Where the body of a brief discusses certain facts, but then claims in a footnote simply that the trial court erred, citing a case without explanation, that is an insufficient brief to require the court to address the merits of the issue; in an insurance case in which the class plaintiffs contended that the company’s policies violated NM law, when the trial court denied the company summary judgment but offered to conduct a hearing on the disputed factual contentions, which was then held without objection, plaintiffs waived their right to jury trial; where insurance company’s practice regarding claims evaluation, including the computer program that it used to evaluate claims, was approved as not violating the company’s policies or NM law by the Superintendent of Insurance, the trial court correctly held that the regulatory exemption statute precluded plaintiffs’ claims under the particular facts of this case.
On rehearing, the court clarifies the language in the proceedings below in which plaintiffs acquiesced in the bench trial on the disputed factual contentions (Vigil, dissenting on the ground that plaintiffs’ conduct did not amount to a clear and unequivocal waiver of jury trial).
Bell v. Estate of Bell, CA 27,392 (Castillo) Feb 21, 2008
Where a decedent wrote a will devising all his property to a trust for his children and then married, Section 45-2-301 does not come into play because the testator did not devise to his children and did not otherwise state his intent and therefore the wife takes an intestate share, but because the trust was funded before decedent died, those assets are not part of the estate; transfers outside of a will cannot satisfy statutory allowances (Bustamante, dissenting on the ground that the trust assets should be used to satisfy omitted spouse’s claims).
McAlpine v. Zangara Dodge, Inc., CA 26,766 (Castillo) Feb 20, 2008
Bond statute for motor vehicle dealers covers three conditions: failure of title, fraudulent misrepresentation, and breach of warranty as to freedom from liens; statutory history is not to the contrary; bond issuer as surety is bound by default of principal where surety had knowledge of suit and opportunity to defend.
Albuquerque Commons Partnership v. City Council of the City of Albuquerque, CA 24,026, 24,027, 24,042 (Castillo) Dec 9, 2005 revised on rehearing, Apr 26, 2006, rev’d, SC 29,791, 29,799 (Bosson) Feb 18, 2008
When the City revised its Uptown Sector Plan in 1995 to quantify standards relating to density and parking that would encourage the vision contained in an earlier Uptown Sector Plan and the City’s comprehensive plan, which called for high densities in the middle of the Uptown Sector, and when the center of Uptown was always zoned SU-3 with site development approval required, and when ACP originally asked for approval of a site development plan for hotel and office space, which was approved, but ACP decided that it was uneconomical and later asked for approval of a mall containing several big box stores and lots of parking around them, which was denied at the same time that the 1995 USP was being passed, ACP’s rights were not denied because there was no change in zoning on the zone map and instead only a text amendment, the City’s action was legislative and therefore did not need to follow the procedure for quasi-judicial actions because the action applied to the whole central area of the Uptown Sector which had some buildings that already complied with the densities and had other vacant land apart from ACP’s which would have to comply, the City’s action did not violate the uniformity principle because the rationales for denying ACP its proposed development under either the 1995 USP or the earlier Uptown Sector Plan were reasonable and in accordance with the Comprehensive Plan and substantial evidence showed that ACP’s proposal would diminish air quality, the City’s action did not violate a resolution that required zoning changes to be only in cases of mistake or change because this was not a zoning change and because even if it was there was evidence of mistake because the earlier USP did not quantify the Comprehensive Plan the way it should have, there was not a downzoning or targeting of specific property, and the change or mistake rule is a minority rule that has been criticized so it should not be followed where it does not need to be followed; administrative review standard requires courts to uphold City’s decisions if supported by substantial evidence; where large damage award for taking and denial of constitutional rights was based on original error in district court reversing City, damage award would be set aside, revised on rehearing to add discussion establishing that fact City adopted text amendment by resolution instead of by ordinance was of no moment because the same formalities applied; that Court would look carefully at claims that text amendments were in effect zone map amendments; and that takings verdict could not stand even if it did not appear to be directly based on original error when expert witnesses who testified to damages for the takings did take into account original error.
Rev’d because the City’s action was a zone change and therefore the change or mistake rule, which is reaffirmed, applies; important to Court’s ruling is that City’s action seemed directed at ACP’s property, which was one of a small number of properties to which City’s actions were directed, but more important is that restrictions did not apply uniformly to all urban centers in city; text amendment versus map amendment does not matter because the impact on ACP is the same; ACP’s plan would have been approved under old Sector plan; expert’s testimony was not based on error because the Court has determined that there was no error.
Hamberg v. Sandia Corp., CA 26,559 (Pickard) Apr 18, 2007, aff’d SC 30,391 (Chavez) Feb 14, 2008
Where a worker is hired by a firm that provides technical employees to a national lab under contract with that lab, which states that the worker is an employee of the firm, but the lab controls his work in the same way that special employers in prior cases involving special or borrowed employees have, then the worker is a special employee, the statutory employee test does not apply, and the worker is limited to workers’ compensation and cannot sue the lab in tort.
Aff’d, the Court clarifying that statutory employer test applies only when the employer procures work and that the independent contractor test is one element of the statutory employer test.
Smith & Marrs, Inc. v. Osborn, CA 26,978 (Wechsler) Feb 14, 2008
Where Plaintiff had oil and gas leases on Defendant’s land and operations thereof contaminated water such that OCD ordered Plaintiff to do things including drilling monitoring wells, there was no language in the leases that allowed Plaintiff to do that without cost, nor was there an implied easement by necessity, but the district court has broad equitable powers and it would order that Plaintiff be allowed to comply with the OCD order upon payment to Defendant of an annual access fee similar to that charged by the state for access to its lands and because this was an equitable determination, it did not matter that Defendant did not prove damages with reasonable certainty.
Ellen Equipment Corp. v. C.V. Consultants & Assoc., Inc., CA 27,029 (Castillo) Feb 7, 2008
Although there was some evidence of the so-called “badges of fraud,” the trial court was not required to find that a transfer was made with the intent to hinder, delay, or defraud a creditor, which is one alternative finding necessary to set aside a fraudulent conveyance, when there is other evidence of good faith; part performance is an exception to the statute of frauds; where a party is relying on the “not receiving reasonable value” to set aside a conveyance under the fraudulent conveyance act, that party has to prove that reasonable value was not received, not just that the value of the property was ambiguous; findings not challenged on appeal are binding.
Concerned Residents of Santa Fe North, Inc. v. Santa Fe Estates, Inc., CA 26,428 (Sutin) Feb 6, 2008
When a defendant acquiesces in claim splitting, that defendant cannot later prevail on a res judicata defense and where the facts relating to the defense are undisputed, the court will review the issue de novo; here there was acquiescence when after raising a boilerplate res judicata defense in the answer, the defendant waited a year and two months before acting on the defense; to the extent that prior case of Cagan implies that raising res judicata in answer alone is sufficient, it is disapproved; where parties in land dispute settled their differences in a document that seemed to disallow certain uses, but then when landowner got city to approve that use, that use might be proper under land use law, but still allow damages to other party; settlement agreement was ambiguous and court could find that it provided other party with rights in the use of the land separate and apart from city zoning and other land use regulations; trial court’s decision that some rights were to be exercised in administrative proceedings and other rights could be exercised outside of those proceedings is supported by the evidence.
Bank of America v. Apache Corp., CA 26,828, 27,062, 26,658 (Fry) Feb 1, 2008
Venue that is proper for one foreign corporation defendant with a statutory agent cannot establish venue for another foreign corporation defendant if the other’s agent is maintained in a separate county; venue that is proper for a foreign corporation defendant with a statutory agent may establish venue for a New Mexico corporation even though the New Mexico corporation maintains an agent for service of process and a principal place of business in another county.
|
