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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: April 2008 (most
recent cases listed first)
Hidalgo v. Ribble Contracting, SC 30,473 (Bosson) Apr 25, 2008
Where there was an error in a workers’ compensation recommended resolution in that one sentence of it said Worker’s date of MMI was in 2001 and another sentence said it was in 2004 and where both parties accepted the recommended resolution and then Employer took the position that benefits were no longer payable because of the 2001 date, the 30 day time period to modify, on grounds of excusable neglect, the compensation order entered as a result of both parties’ acceptance of the recommended resolution did not apply, and instead the two year period to modify a compensation order on grounds of mistake applied, so the WCJ did not err in correcting the order to reflect the accurate 2004 date and require Worker to be paid proper compensation benefits.
XTO Energy, Inc. v. Armenta, CA 27,329 (Vigil) Apr 24, 2008
Trial court has discretion in the equitable enforcement of stipulated injunction settling claims between a landowner and energy company that leased mineral rights, which provided that landowner was to allow company reasonable access to its wells; where access by a road adjacent to a river was impossible due to erosion without fault by either party and where rebuilding the existing road would cost six times what relocating the road would cost and would not cause much harm to landowner, trial court did not abuse discretion in ruling that relocating the road would be within stipulation and awarding modest damaging for landowner’s inability to use the land under the relocated road.
Gregory Rockhouse Ranch v. Glenn’s Water Well Service, CA 25,963 (Vigil) Apr 22, 2008
In the context of two competing claims to water from a well that the state engineer’s office had considered abandoned since the mid 1970s, the complaints of a person, who appeared to have a lesser claim to the water, to the state engineer and the BLM, about the person who appeared to have a greater claim to the water during the permit process were not absolutely privileged because absolute privilege applies only to court or quasi-judicial administrative proceedings, but they were qualifiedly privileged (and therefore could not be the basis of a slander of titled action) because they were made by persons with legitimate interests at stake and to persons involved with a sufficiently important public interest and the privilege was not abused because the initial views of the state engineer and BLM actually supported the person with the apparently lesser claim, and even when the lesser claim became more apparent, at that point litigation was in progress and therefore the complaints were absolutely privileged then; there was no tortious interference with contract because the person with the greater claim’s contract was not breached and when it was ended by its term, it was renewed.
Howse v. Roswell Ind. Sch. Dist. CA 27,171 (Pickard) Apr 21, 2008
Where the only explanation for why a union did not timely file a grievance on behalf of a worker was contained in an unsworn “declaration” of the union steward (as opposed to a sworn affidavit), there was a question of fact as to whether the union breached its duty of fair representation and summary judgment for the union was erroneous; New Mexico recognizes hybrid actions where a worker can sue the employer for breach of a collective bargaining agreement, as well as sue the union, and the statute of limitations for the action against the employer begins to run when the worker knows or should know that the union has breached its duty of fair representation and the limitation period is the applicable state period (here two years for breach of contract against state), and not the federal labor law statute (six months).
Bassett v. Sheehan, Sheehan & Stelzner, P.A., CA 27,195 (Castillo) Apr 17, 2008
Because, in prior case concerning whether Plaintiffs conveyed land without water rights, the court ruled in Plaintiffs’ favor, lawyer for Plaintiffs made out prima facie case for summary judgment in Plaintiffs’ claim against him for legal malpractice; Plaintiffs’ cases that are to the effect that advantageous final ruling does not preclude malpractice case are distinguishable or reasoning is rejected in light of NM law that says mere errors on points of law not yet settled do not subject an attorney to liability and this reasoning is analogous and in light of fact that Plaintiffs did not present any evidence that attorneys were negligent, only that their actions resulted in litigation.
Varoz v. Varoz, SC 30,209 (Maes) Apr 15, 2008
Where parties to contract to make a will were family members and the evidence of the contract consisted of written letters, one stating one side’s promises and the other stating the other side’s promises and referring to property not described except as the family’s property and there was only one such piece, Court would not rely on technical formulations of statute of frauds and instead held that the letters were sufficient memoranda to satisfy the statute of frauds (Chavez, dissenting on the grounds that the letters do not refer to one another or to a deed, that the earlier letter preceded the alleged agreement, that the requirements of the statute of frauds were not met, and that the alleged agreement made no sense anyway).
In re J. Wayne Griego, SC 30,203 (per curiam) Apr 11, 2008
Although Judicial Standards Commission recommended suspension for judge found guilty of adjudicating ex parte minor traffic violations for family and friends in the same manner as most other defendants would have those offenses adjudicated, Supreme Court removes judge from office because conduct was willful and served to bring judicial system into disrepute and judge was already the subject of another disciplinary matter.
McNeill v. Burlington Resource Oil & Gas Co., CA 26,469 (Bustamante) Oct 26, 2006, rev’d in part, SC 30,162 (Serna) Apr 3, 2008
Defense of estoppel by deed or waiver is itself waived when placed in an amended answer filed more than four years after the amended complaint without seeking leave of the court; court rejects Texas cases that say injury to property is personal to owner at the time of the act causing injury in view of NM’s rule that causes of action accrue at the time person should know of claim; substantive evidence supported jury’s finding that plaintiffs should not have known of cause of action until within statute of limitations; measure of damages for injury to property depends on whether injury is permanent or temporary; if permanent, it is the diminution in fair market value; if temporary, it is the rental value for the period of time or cost of remediation if this is less than fair market value; determination of whether damage is permanent or temporary is a jury question; diminution in value of damaged property should include the diminution in value of entire property, not just the limited portion that is damaged; theory of private nuisance is not available where other theories of damage to property are available.
Aff’d in part and rev’d to the extent that Court holds that characterization of injury as permanent or temporary is not determinative and Carter Farms is overruled to that extent, that exclusion of cost of repairs was prejudicial error because such evidence is relevant to value, and that jury should determine most reasonable means of make the surface estate owner whole for the unreasonable damage caused by mining operations.
Grassie v. Roswell Hospital Corp., CA 28,050 (Bustamante) Apr 3, 2008
Trial court did not abuse discretion in setting supersedeas at twice the amount of judgment pursuant to statute because Rule 1-062(D) and statute may not be inconsistent because damages for delay might not be known until after appeal is over; each case must be evaluated on facts to determine whether statute has to give way to what Rule might require, but here there was no showing that amount of bond was contrary to what Rule requires and the burden is on the person seeking the stay to show that.
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