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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: October 2007 (most
recent cases listed first)
Alliance Heath of Santa Teresa v. National Presto Industries Inc., CA 26,836 (Kennedy) Oct 25, 2007
Where health care provider sued to recover payment for services and defendant filed a motion for summary judgment saying that provider had been paid by Medicaid and could not recover further, attaching records showing such payment, issue of Medicaid payment was properly before the court even though it was an affirmative defense that was not pled because provider did not object at the time to payment being used as a defense although it did respond that defendant’s ground for summary judgment was an affirmative defense that was not properly pled; trial court did not err in considering records where provider did not deny that it had been paid by Medicaid; administrative code regulation stating that following acceptance of Medicaid, providers cannot seek payment from other responsible parties provides basis for trial court’s grant of summary judgment.
Stennis v. City of Santa Fe, SC 29,997 (Serna) Oct 25, 2007
City could pass an ordinance regulating the drilling of domestic wells within the city and the state statute enacted later does not limit that authority, but to the extent that the statute requires the city to file its ordinance with the State Engineer, there were conflicting representations as to whether that was done, leading to an issue of fact that needs to be determined on remand; if the ordinance was filed, the property owner needs to comply with it; if not, she can use her well drilled in violation of the ordinance.
State ex rel. CYFD v. Andre G., CA 25,869 (Alarid) May 10, 2007 withdrawn and filed on rehearing October 15, 2007
Where there was an abuse/neglect case in NM that resulted in a order for a Texas father to reimburse CYFD for the time child was in CYFD’s custody, and when Mother sought services from HSD, which filed (together with the Texas Attorney General) an action for support in Texas, which resulted in a time-limited order that no one appealed, HSD’s argument that Texas lacked jurisdiction is not one of the exceptions to Restatement of Judgments Section 12, which states that jurisdiction cannot be challenged after a contested proceeding unless certain exceptions are present, and therefore HSD could not reopen the CYFD case and HSD is now precluded from collaterally attacking the Texas court’s jurisdiction; nor do various statutes on child support jurisdiction alter this result; in particular the Texas order did not modify the NM order because they were directed at different time periods and to different obliges.
In re Cable Family Trust, CA 26,357 (Robinson) Oct 12, 2007
Where two grantors make a trust that allows the surviving grantor the unrestricted right to withdraw all assets from the trust, the instrument should be read to imply a right to amend the terms of the trust after the death of one grantor and this is true even if there is a section of the trust document that says that “grantors” can amend the trust; a person who earlier in the litigation claimed to be a successor trustee is not estopped to challenge the trust on the ground that a trustee cannot act to challenge the trust.
Salas v. Mountain States Mut. Cas. Co., CA 26,385 (Bustamante) Oct 10, 2007
While Plaintiff violated an insurance policy by settling with the underinsured motorist’s carrier without her insurer’s consent and while that presumptively prejudiced her insurer and while Plaintiff did not rebut the presumption, but Plaintiff’s violation is excused because the insurer had a duty to notify her of the availability of UIM coverage and its requirements once it paid out medical payments under circumstances where Plaintiff was a class 2 insured (occupant of a vehicle insured by company, not holder of policy) (Vigil, dissenting on the ground that the duty the majority puts on the insurer has no grounding in tort, contract, or public policy and because Plaintiff should have inquired about the provisions of the policy she was relying on).
Cortez v. Cortez, CA 27649 (Vigil) Oct 9, 2007
When something is required to be paid on a certain day, placing it in the mailbox that day is not sufficient unless the terms of the requirement allow for mailing or there is a course of dealings between the parties that allows for mailing; Rule 1-005 does not apply; fact that there is a forfeiture is not controlling because language of agreement that required payment on a certain day was not ambiguous.
N.M. Tax & Rev. Dep’t v. Dean Baldwin Painting, Inc., CA 26,752 (Wechsler) Oct 4, 2007
In a case involving the deduction from gross receipts of receipts from services where the buyer does not take delivery in New Mexico or make initial use of the item in New Mexico, TRD was wrong to say that initial use was in New Mexico where Taxpayer painted planes that were then flown out of state for inspection, but denial of deduction was affirmed when hearing officer did not believe testimony of Taxpayer’s president that planes were delivered out of state when there were inconsistencies in his testimony and it conflicted with documents showing that planes were delivered in state.
Scanlon v. Las Cruces Public Schools, CA 26,334 (Fry) Oct 1, 2007
Where a prior appeal was summarily reversed on a particular ground and other issues were not reached, the prior appeal did not implicitly affirm on those issues, and they can be reached in this subsequent appeal; constitutional exclusionary rule does not apply in school discipline cases; due process does not require student to be able to cross-examine fellow students who were said by principal to be smoking pot with student, who was caught and his car searched, because requiring technical compliance with rules of evidence at school disciplinary hearings would be unduly burdensome and might cause students not to inform on their fellow students, which would be bad for the school in trying to enforce school rules.
Santillo v. N.M. Dep’t of Public Safety, CA 26,442 (Bustamante) Oct 1, 2007
Where Plaintiff applied for a renewal of her liquor license in a timely fashion and there was no statutory impediment to getting it renewed but the liquor division was behind in getting out renewal licenses and so Plaintiff was without a license when she was serving alcohol, she could not sue the officers who arrested her in a big display of force on a Friday night for false imprisonment or malicious abuse of process based on lack of probable cause because the statute required her to be actually licensed, but she could sue for malicious abuse of process based on procedural impropriety (Sutin, concurring to point out his concern that there was a complete lack of utilization of the regulatory process in an area that is heavily regulated).
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