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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: March 2008 (most
recent cases listed first)
In re Estate of Roybal, CA 26,874 (Sutin) Mar 31, 2008
Trial court did not abuse discretion in approving partial hourly/partial contingency fee arrangement in probate case when both hourly rate and continency percentage were half of normal amounts, and this was true even though attorney at one point said that he would settle for very large monetary sum instead of getting his percentage in the land at issue in the case, because trial court was familiar with whole case and could properly rule that attorney was not self-interested, fraudulent, or unethical and could also properly rule that clients agreed to everything.
Piedra, Inc. v. State Transportation Comm’n, CA 26,923 (Sutin) Mar 31, 2008
Where statutes allow the Commission to select and designate systems of roads that may be changed or added to from time to time, trial court erred in holding that Commission did not have power to transfer a portion of a road running over Pueblo land to the Pueblo in exchange for other land to widen a major highway when the agreement also designated who was responsible for maintenance and there was no contention that the public interest was not subserved by the actions; Court disagrees with Commission’s contention that there is no authority for judicial review of its actions (Robinson, dissenting on the ground that the courts should have to determine whether the public interest was subserved).
ERICA, Inc. v. N.M. Regulation and Licensing Dep’t, CA 26,824 (Sutin) Mar 31, 2008
Defense of good faith demanding and seeing identification to charge of sale of liquor to minors is not limited to cases of fraudulent identification and even though minor’s license that was presented to clerk showed she was underage, the clerk was asserted to be relying on law that required underage licenses to be different, which one showed to her was not; fact that clerk thought law required different orientation for license and law in fact required printed legend does not mean that hearing officer’s denial of defense was harmless, and on remand factual questions on issue of good faith need to be addressed; evidence regarding a memorandum that clerk did not know about was irrelevant, but hearing officer should have allowed offer of proof regarding it; hearing officers do not have authority to compel interviews; due process issues of insufficient notice and bias of hearing officer rejected; entrapment issue discussed but not decided; Court declines to award attorney fees and holds that the evidence to support disciplinary action against liquor licensee was sufficient.
Garcia v. Underwriters at Lloyd’s London, CA 25,985 (Vigil) Jan 26, 2007, aff’d SC 30,245 (Bosson) Mar 13, 2008
A person who has a tort claim against an estate may file a separate action or a claim in the estate proceeding; filing the claim in the estate proceeding is construed as filing suit as required by the insurance policy on which recovery is sought; factual questions were present regarding the insurance company’s duty to defend when it knew about the claim in the estate proceeding from the people representing the estate, and it made the decision (erroneously) that it would not be liable in a probate case (erroneous because this case was in district, not probate, court), although there was not an explicit request to defend (Wechsler, specially concurring on the ground that the majority’s language appears to create a presumption of a duty to defend based on notice of the claim, which is not the law, but he joins in the opinion’s view that a jury could find that there was a demand).
Aff’d to expressly approve of the CA’s language that “actual notice presumptively triggers a duty to defend unless the insured knowingly declined a defense” and thereby disavow language in an earlier case that implied that there needed to be a formal demand before there is a duty to defend; moreover, notice does not need to be from insured.
Heath v. La Mariana Apartments, CA 24,991 (Robinson) Nov 2, 2006, aff’d SC 30,129 (Bosson) Mar 12, 2008
Where apartments were built before building code required certain space between rails in balcony and where Plaintiff=s infant son fell through the rails, trial court did not err in dismissing claim of negligence per se, in excluding evidence of irrelevant building code violations, or by instructing the jury in ways first complained about on appeal or by instructing the jury to compare Plaintiff’s negligence against Defendant (even though that might amount to imputing Plaintiff’s negligence to her son).
Aff’d for the reasons set forth in CA opinion with one exception (SC takes issue with CA implication that statutes cannot create a higher standard of care than common law) and with one exposition (SC rules that statutes or codes that simply restate common law and do not contain a specific statutory standard should not be basis of negligence per se).
Rodriguez v. Scotts Landscaping, CA 26,929 (Bustamante) Mar 5, 2008
Section 52-5-12, which allows workers to receive lump sum benefits only to pay debts or when a worker returns to work at 80% of his pre-injury wage, does not deny equal protection to a worker who wants a lump sum so he can invest and better be able to support himself; intermediate scrutiny does not apply because the class is workers who have not run up debt or returned to work and this is not a sensitive class; the limited class of workers eligible for lump sum is rationally related to keeping workers off welfare rolls.
State ex rel. CYFD v. Hector C., CA 26,807 (Kennedy) Mar 4, 2008
Evidence did not support that causes and conditions of neglect were not likely to change in future because Father was in prison and was doing the best he could when the petition for termination was filed, but when Father was released he started doing better and therefore this case was like Natural Mother; there was clear and convincing evidence that Department made reasonable efforts; but termination of Father’s parental rights on ground of presumptive abandonment is upheld because as to one child, Father was imprisoned when the child was one month old and therefore there was never a bond and as to the other child, he was only sixteen months old, and all the other elements of presumptive abandonment were met.
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