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Summaries
of Recent New Mexico Appellate Opinions - Civil Cases
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Full Opinions - Hard
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Civil Cases: June 2008 (most
recent cases listed first)
Chavez v. Lovelace Sandia Health Sys., Inc., CA 27,425 (Sutin) Jun 27, 2008
In a case in which a hospital refused to produce what it claimed were privileged documents relating to peer review and quality improvement and in which the trial court reviewed these documents in camera and decided they were innocuous and routine and therefore ordered discovery and entered punitive sanctions when the hospital sought writs in the Supreme Court and Court of Appeals and ultimately refused to turn the documents over, the COA reverses because the trial court did not follow the analysis required in the Smith case, which first asks whether the documents were produced exclusively for peer review purposes (which there was an unrebutted affidavit saying they were) and then asks whether the documents are critical to the plaintiff’s case (which it would seem they were not, being innocuous and routine).
Fiser v. Dell Computer Corp., CA 25,862 (Robinson) Apr 30, 2007, rev’d SC 30,424 (Serna) Jun 27, 2008
When a person purchases a computer over the internet on a site that has hyperlinks to the company’s terms and conditions of sale and then gets e-mail confirming the purchase that also has hyperlinks to the terms and conditions and then gets the computer with a printed copy of the terms and conditions which terms provide for arbitration of disputes and also provides that if the buyer does not agree to the terms, the buyer can return the computer within thirty days, such an “approve or return contract” is valid and enforceable so that the dispute must be arbitrated; Texas law, as provided for in the agreement, controls because it has a relation to the contract and it is not contrary to New Mexico policy; arbitration agreement is not unconscionable under Texas law because that law does not provide that foregoing class actions is unlawful, and because the agreement to arbitrate was supported by other consideration and thus the company did not need to arbitrate its disputes against the buyer (and illusoriness was not raised below so it will not be entertained on appeal); agreement did not violate New Mexico constitution because it was an agreement to arbitrate and not a law requiring arbitration (which prior cases had held unconstitutional).
Rev’d because the class action ban is contrary to NM public policy and therefore NM cannot apply Texas law, and under NM law, the class action ban is unconscionable because it would preclude consumers with small claims from achieving a remedy; because unconscionability is a recognized ground for avoiding a contract, the FAA does not preempt this holding; class action ban is part of arbitration clause and cannot be severed and therefore arbitration clause cannot be enforced.
ACLU v. City of Albuquerque, CA 26,143 (Alarid) May 2, 2007, aff’d SC 30,415 (Bosson) Jun 27, 2008
Plaintiffs ACLU and a member (its executive director) do not have standing to challenge the Albuquerque vehicle forfeiture law which allows seizure of cars of arrested people because there is nothing suggesting an imminent harm to the plaintiffs and therefore they lack traditional standing; they lack organizational standing because no individual would meet the criteria for standing; they are not making any First Amendment challenges that would allow them standing to raise overbreadth and they have not claimed that they intend to engage in the actions prohibited by the ordinance (DWI); and there is no important public interest to this case in the sense of a clear threat to the essential nature of government. Aff’d, with the Court making clear that NM adheres to the traditional three-pronged standing doctrine requiring injury in fact, causation, and redressability even though standing in New Mexico is not constitutionally based, as it is in federal courts, although the Court might be open to modifications of the second and third elements; on the merits, the Court follows the COA analysis.
In re Petition of Variable, CA 28,488 (Fry) Jun 27, 2008
A person has a common law right to change his name to anything he wants (absent fraud or misrepresentation), but when he involves the state by asking for a statutory name change, the courts may refuse the change if the name is offensive; district court did not abuse discretion in refusing to change Variable’s name to Fuck Censorship!
Sanders v. Fedex Ground Package Sys. Inc., SC 30,278 (Bosson) Jun 26, 2008
Court affirms jury verdict in breach of implied covenant of fair dealing case, reviewing the law and facts on evidence taken to clarify the parties’ bargain (Mark V) and concluding that the jury believed Plaintiff’s evidence over Defendant’s and that the jury instructions were proper; it reverses COA memo opinion, which held that implied covenant cannot override absence of a particular provision in a contract and holds that there were provisions of the contract that could be explained by oral representations.
Hart v. State Farm Mut. Auto. Ins. Co., CA 27,633 (Vigil) Jun 26, 2008)
When child suffered inappropriate sexual touchings in an uninsured vehicle and suffered emotional injury as a result, this was not bodily injury as defined in insurance policy or prior cases.
New Mexico Banquest Investors Corp. v. The Peters Corp., CA 25,276 (Alarid) Mar 6, 2007, aff’d SC 30,292 (Bosson) Jun 25, 2008
A control premium (given to minority shareholders when their share would enable someone to gain a majority interest) is not required as a matter of law when valuing minority shares, but rather rests in the discretion of the fact finder depending on the facts and circumstances of the case; in this case, the minority failed to show any fraud or illegal activity that would take the case out of the ordinary appraisal remedy and into requiring punitive damages and instead showed only a mere breach of fiduciary duty that did not result in damages because the minority could not have purchased the shares that the breacher sold by way of redemption in any event; contract was unambiguous, so trial court properly granted summary judgment; interest may be compounded annually and does not have to be simple interest under the statute governing post-judgment interest for corporate valuations, which says nothing about compounding one way or the other.
Aff’d, with the Court clarifying that the COA reasoning, relying on a prior case that the SC reversed, was wrong regarding the appraisal remedy, but that such remedy was all that was required under the facts of this case in any event; other issues also affirmed for the basic reasons set out in the COA opinion.
In re Estate of DeBaca, CA 27,069, 27,164, Jun 25, 2008
Evidence was insufficient for trial court to determine that beneficiary of will exercised undue influence over testator where testator left all property to one of several children but had given other children gifts in past and several independent witnesses (lawyers, doctors, and psychologist) testified that testator knew what she was doing and intended the disposition made; evidence of placing lien on property was not sufficient to support slander of title, but trial court’s findings supported malicious abuse of process and same damages in the form of attorney fees; $12,000 in nominal damages was not supported, but trial court did not abuse discretion in determining attorney fees and most costs; for the tort of malicious abuse of process the tort interest rate was required.
Kirby v. Long-Term Disability Plan of TAD Resources Intern’l, Inc. CA 27,624 (Wechsler) Jun 23, 2008
Disabled worker cannot garnish insurance policy issued to an ERISA plan to collect benefits to which she claims entitlement when she recovered a default judgment against the plan because the insurance company was not indebted to the plan, nor did it hold property subject to garnishment; further, in a prior appeal arising from the dismissal of the insurance company from the suit, among other dismissals, worker did not appeal the judgment dismissing the insurance company with prejudice.
Computer One, Inc. v. Grisham & Lawless, P.A., CA 25,732 (Wechsler) Apr 30, 2007, rev’d, SC 30,425 (Bosson) Jun 23, 2008
When an attorney files a lien in a case that is settled on behalf of the client after the client has repudiated the settlement, but the court enforces it, and the client is given time at the client’s request to object to the lien and raises numerous objections, the client cannot consistently with principles of res judicata thereafter sue the attorney for malpractice; court does not give advisory opinions.
Rev’d on the ground that a prior case, holding that an attorney malpractice claim is not a compulsory counterclaim to a motion for attorney fees, applies equally to the equitable proceeding of an attorney’s charging lien and this is true even if the parties are given the opportunity to litigate why the charging lien should not be enforced; the only issues precluded are those actually litigated in the former action.
Pincheira v. Allstate Ins. Co., CA 26,044 (Castillo) Jun 13, 2007, aff’d, SC 30,490 (Chavez) Jun 20, 2008
In discovery dispute, because NM has a privilege for trade secrets, federal authority requiring the person opposing disclosure to show good cause does not apply; instead, since trade secrets are privileged, the person requesting discovery has the burden to show more than that evidence is relevant; that person must show that non-disclosure would work an injustice or give the opposing party an unfair advantage; of course, the person claiming trade secret has the burden of establishing that the requested information is a trade secret first and that requires showing of some harm from disclosure; various of Plaintiff’s arguments for waiver are rejected (Vigil, dissenting on the ground that the burden should be on the person opposing discovery to show both that the requested material are trade secrets and that there is good cause to except them from discovery; in meeting the burden of showing trade secrets, the person opposing discovery must show under the evidence rule creating the privilege that no injustice will occur from recognizing the privilege).
Aff’d for different reasons, the Court deciding that once the party opposing discovery makes a good faith claim of trade secrets, the court should order disclosure to the other side (if the other side is not a competitor) with another order requiring no dissemination of the material until the question of whether it is a trade secret is determined; then the court should hold a hearing and decide the factual question of whether it is a trade secret; party seeking admission of trade secret has burden of showing fraud or injustice; Court lays out factors to consider to determine if claim of trade secrets is made in good faith; Court also gives guidance for issuance of protective orders.
Ortiz v. Shaw, CA 27,110 (Alarid) Jun 19, 2008
Where Plaintiffs do not follow the rules on service, a default judgment must be set aside, even if Defendant knew about the suit and negotiated with Plaintiffs before it was filed; nor did Defendant waive proper service; correspondence between the parties showed that Defendant always insisted on proper service and Plaintiffs’ counsel’s statements to the court to the contrary are not evidence; filing an answer and asking for various affirmative relief also did not waive proper service because these things were done while a default judgment was in place.
Percha Creek Mining LLC v. Fust, CA 27,655 (Kennedy) Jun 18, 2008
County was indispensable party in suit to declare a particular road public because County would be required to maintain the road, and trial court correctly dismissed the case against the neighbors where Plaintiff settled with the County on the basis of the County’s immunity and dismissed the County from the case earlier.
Miller v. Bd. of Commr’s of Santa Fe County, CA 26,336 (Kennedy) Jun 18, 2008
Person who bought a lot that had a subdivision plat approved subject to conditions 20 years ago, but conditions never realized and county later took position that plat was abandoned, did not have vested rights in the plat approval because there was no change of position in reliance; county could revoke approval because conditions were not met and could revoke because substantial time passed without action.
Pielhau v. RLI Ins. Co., CA 27,686 (Pickard) Jun 16, 2008
Uninsured motorist statute applies to automobile insurance and therefore umbrella policy excluding UIM from its coverage was not contrary to public policy or to our statute, which is not a “full coverage” statute; nor was the policy ambiguous, nor did excluding UIM coverage violate NM insurance regulations; trial court did not abuse discretion in limiting discovery.
Sheldon v. Hartford Ins. Co., CA 27,477 (Pickard) Jun 16, 2008
“Owned vehicle” and “regular use” exclusions in policy operated to deny coverage to person (and his accident victims) who did not list the particular vehicle on his policy or pay a premium for it, although it was owned by his wife and he regularly used it; policy language was unambiguous and denying coverage comports with purpose of exclusions, which are to prevent insured from purchasing a policy and paying premiums to cover one vehicle and then obtaining coverage on another vehicle regularly used in the household.
Reule Sun Corp. v. Valles, CA 27,254 (Castillo) Jun 6, 2008
The issue of whether a person is a subcontractor or employee is a mixed question of law and fact, and where the facts were in conflict, but could have supported that Reule oversaw the details of Perez and his crew’s stucco work on a house Reule contracted to stucco and hired Perez and his crew to do the actual work and therefore there was no violation of the Construction Industries Licensing Act and Ruele could sue the homeowner on his contract; trial court did not abuse discretion in various procedural and evidentiary rulings including continuance, amending counterclaims, photographic evidence, and limiting time for trial.
Marckstadt v. Lockheed Martin Corp., CA 27,222 (Bustamante) Jun 6, 2008
A written but unsigned endorsement rejecting UM/UIM coverage and attached to the policy is sufficient to effect a valid rejection of such coverage because the language of the regulation does not require that the rejection be signed and attached to the policy and to so require would add words to the regulation.
Ferrell v. Allstate Ins. Co., CA 26,058 (Pickard) Nov 29, 2006, rev’d SC 30,165 (Bosson) Jun 6, 2008
District court committed error of law when it certified class of insureds from 16 states who paid auto insurance premiums on installment basis for which they were charged an additional fee when plaintiffs’ claim was breach of contract based on the definition of “premium” in the statutes and the statutes of some states were different and the cases from other states had construed similar definitions differently, as did two district courts in New Mexico; court must perform conflicts analysis in class action situation and could not assume that other states’ law would be same as NM’s, thereby finding a false conflict, even if that assumption could be made for constitutional purposes; the need to apply ambiguous and uncertain laws of other states makes the case unmanageable as a matter of law; since Allstate did not argue against certification of NM class alone, except in a footnote saying that the argument was reserved, the matter was remanded to proceed as a class action of NM insureds unless the court reconsidered, which should not be done lightly because litigants should not raise objections to class action certification piecemeal.
Rev’d because the burden is appropriately on the party opposing class certification, once the proponent shows that the laws of the various states are similar, to show that there are actual conflicts and the fact that not all states have decided the issues is not sufficient to say class action would be unmanageable; Court upholds conflicts analysis because it is constitutional to apply NM law in cases of uncertainty; although actual conflict does not exist, Court goes on to reject the Restatement (First) of Conflicts of Laws in the multi-state contract class action situation if there is an actual conflict; after canvassing the law of other jurisdictions, Court states that forum selection clauses are properly treated as venue defenses under rule 1-012(B)(3) that are waived if not timely and properly raised initially.
Granberry v. Albuquerque Police Officers Ass’n, CA 26,898; 27,026 (Pickard) Jun 5, 2008
Although union is entitled to large measure of discretion in dealing with complaints by members, a question of fact was present precluding summary judgment when union settled prohibited practice complaint for four white male officers, but not for the plaintiffs Hispanic and black officers, when the reasons the union gave for not representing them were not supported by the law or facts and the union did not give any other explanation.
Talbott v. Roswell Hospital Corp. CA 27,135 (Wechsler) Jun 4, 2008
In this case, NM formally adopts Restatement of Torts Section 411 requiring people to exercise reasonable care in selecting contractors to do work that involves risk of physical harm; Hospital’s arguments about why it was not liable under Section 411 for negligence of air ambulance helicopter are rejected, including foreseeability, preemption, proximate cause, lack of contract, and alleged fact that background check would not have revealed problem; where Plaintiff was relying on Section 411, jury instructions that followed it were adequate; new trial not required on the basis of plaintiff’s counsel’s actions which were not found by the trial court to rise to the level of misconduct that a new trial was required.
Cook v. Scott, SC 30,148 (Maes) Jun 4, 2008
Section 38-3-3(A), which mandates a change of venue when the presiding judge is interested in the result or related to the parties, contemplates single judge districts, as were historically the case in NM, and is now without force and effect so that when all judges recuse or are disqualified and a judge is designated by the Supreme Court, the case should stay in its original district with the designated judge presiding.
Dell Catalog Sales L.P. v. Tax. & Rev. Dep’t, CA 26,853 (Fry) Jun 3, 2008
Where an out-of-state entity is set up to buy computers from the parent corporation and sell them by mail, phone, or over the internet to New Mexicans and entity accepts risk of loss until delivery, State can collect gross receipts tax on that transaction because policy of gross receipts tax act is to impose tax on consumption in New Mexico based on the destination principle and place NM sellers on the same level as out-of-state sellers; although transfer of title took place in Texas, this is irrelevant in this case; imposition of tax does not violate commerce clause because the tax is applied to an activity with a substantial nexus in the state, particularly because taxpayer sells, at the same time as it sells computers, a service contract, although with yet another entity, that does repair work and technical support in NM; compensating tax on taxpayer’s catalogs is upheld.
Rio Grande Kennel Club v. City of Albuquerque, CA 27,207 (Bustamante) Jun 2, 2008
Dog owners who would be required to sterilize animals and change how they house them have standing to challenge Albuquerque’s humane animal treatment ordinance; district court did not error in not allowing dog owners to develop record on some issues when the City moved to dismiss some of their claims because the facts would be viewed from the complaint in the light most favorable to them; whether ordinance imposes an excise tax when it requires license fees is a matter on which evidence must be taken because the issue is whether there is excess revenue so trial court erroneously granted City’s motion to dismiss to this extent; dog owners’ assertion of taking is not ripe for review in a facial challenge to the ordinance, and even if there is a taking, there is no showing that just compensation is not available; various issues not raised below or properly briefed; federal animal welfare law does not preempt state or local laws, and state livestock law does not preempt this ordinance; reducing the number of unwanted animals that need to be euthanized is a legitimate local interest but court erred in finding that any effect on interstate commerce is incidental without hearing evidence.
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