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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: August 2007 (most
recent cases listed first)
Durham v. Guest, CA 26,123 (Castillo) Aug 31, 2007
Insured’s complaint against attorney, who was hired to represent insurance company in arbitration when insured demanded policy limits was properly dismissed because that attorney owes duties to her client, even if she was charged with aiding and abetting the breach of a fiduciary duty, and not the opposing client, at least in the absence of crime or fraud; nor was the attorney an “adjuster”; arbitration proceeding is not a judicial proceeding for purposes of malicious prosecution claim.
Tri-State Generation & Transmission Ass’n v. D’Antonio, CA 27,802 (Pickard) Aug 31, 2007
Where State Engineer adopted regulations that were challenged in district court under Rule 1-075 (certiorari) with some relief being granted to petitioner and where State Engineer did not file timely petition for certiorari in Court of Appeals, but instead filed notice of appeal in district court, Court holds that notice of appeal is proper because Rule 1-075 did not apply to rule challenges of water rules due to standard of review being inconsistent with constitutional standard for water decisions, as well as being applicable to quasi-judicial decisions; nor did statute relied on by State Engineer, which appeared to apply to individual appropriations; instead declaratory judgment appeared to be the proper procedure below and no one was prejudiced by the adjudication in the procedural posture below because the district court considered the matter on the brief just as the court would have done had a declaratory judgment been filed.
Gardiner v. Galles Chevrolet Co., SC 29,783 (Bosson) Aug 30, 2007
In a case with multiple defendants, proper venue for the foreign corporation with a statutory agent can also establish venue for a resident defendant despite the holding of Baker, that venue for foreign corporations with statutory agents cannot be based on venue for foreign corporations without statutory agents.
Henning v. Rounds, CA 26,245 (Robinson) Aug 29, 2007
Teacher’s complaint for various tort claims against her supervisors and school board for harassing her with bad evaluations are barred by Tort Claims Act immunity, notwithstanding teacher’s contention that defendants acted in bad faith because all of their actions were part of their duties; teacher’s complaint for breach of duty of good faith and fair dealing in contract does not state a cause of action when nothing defendants did injured teacher’s rights under her contract and when allowing the suit would unnecessarily involve courts in day to day employment relationships inasmuch as teacher was not fired and did not suffer adverse contractual effects (Bustamante, dissenting on the ground that teachers should be able to challenge bad evaluations in court because of the importance of such evaluations).
N.M. Industrial Energy Consumers v. N.M.P.R.C., SC 29,633 (Serna) Aug 28, 2007
The Renewable Energy Act allows utilities to recover the reasonable costs of compliance (which requires utilities to have an increasing percentage of their sales to be renewable energy) in the rate-making process; that process includes automatic adjustments by which utilities can recover enumerated costs, in addition to rate cases; substantial evidence does not support a finding that purchase of renewable energy certificates without accompanying power or energy amounts to purchased power eligible for automatic adjustments; PRC exceeded its authority by saying that costs of certificates were closely enough related to power that costs would be recoverable.
Albuquerque Redi-Mix, Inc. v. Scottsdale Ins. Co., SC 30,142 (Serna) Aug 28, 2007
A motion for reconsideration filed within 10 days of summary judgment is considered a motion to alter or amend the judgment under Rule 1-059(E), which does not contain a deemed denied provision, even before the current amendments to the rules, which eliminated deemed denied provisions, and thus a notice of appeal filed within 30 days of the order denying the motion is timely; further, the Court has now conformed all civil rules so that they do not contain deemed denied provisions and therefore cases that rely on the statute containing such a provision or earlier rules containing such a provision are overruled.
State ex rel. CYFD v. Brandy S., CA 26,814 (Bustamante) Aug 24, 2007
Although children’s court in TPR case should ordinarily not take judicial notice of the file after the completion of evidence without telling the parties what it proposes to rely on, in this case it did not appear that the court relied on anything that was not repeated at the hearing and therefore mother’s due process rights were not violated and there was not structural error in the proceedings.
Santa Fe Pacific Gold Corp. v. United Nuclear Corp. CA 26,727 & 27,671 (Castillo) Aug 22, 2007
Trial court’s order requiring documents allegedly covered by attorney-client privilege and work product doctrine to be reviewed in camera is affirmed because there is no privilege to refuse to produce documents for in camera review, but various of the trial court’s rationales are reversed; common interest or joint defense doctrine applies in NM and applies attorney-client privilege to communications that are intended to be confidential between a person and another person’s lawyer when they share a common interest about an identical (not merely similar) legal (not business or commercial) matter; NM requires offensive use of material in order for attorney-client privilege to be waived; whether attorney can compartmentalize material he learned as attorney and material he learned as observer is a question of credibility for the trial court; attorney can waive privilege on behalf of client; opinion work product doctrine applies to consultants who help lawyers when they give opinions; non-opinion work product doctrine applies to other compilations by experts and those may be ordered to be disclosed when there is a substantial need for them; there was adequate support in this case for the trial court’s ruling to turn over non-opinion work product.
N.M. Public Schools Ins. Authority v. Arthur J Gallagher & Co., CA 26,251 (Vigil) Aug 20, 2007
Where company was hired by schools authority to draft second tier insurance policy and obtain insurance from London and where company was negligent in drafting such that London insurers would not play claim, action by schools authority against company was an action in negligence and not indemnification and thus negligence statute of limitations applied and action against company was time barred; relationship between schools authority and company was not one of contractual indemnification; nor do facts fit within recognized theories of implied indemnification.
Leonard v. Payday Professional, CA 26,787; 26,740 (Bustamante) Aug 7, 2007
WCJ did not err in apportioning Worker’s medical expenses between two successive employers such that they shared the non-surgical care 50/50, but the second employer was responsible for 100% of the surgical care when there was evidence that both injuries contributed to Worker’s condition but that without the second injury, Worker would not have needed surgery; WCJ also did not err in failing to shift attorney fees when Worker offered to settle for the employers paying for medical benefits, but Worker did not assign a percentage of benefits to each employer, when that percentage was the main contested issue in the case.
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