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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: November 2007 (most
recent cases listed first)
Truong v. Allstate Ins. Co., CA 26,329 (Bustamante) Nov 30, 2007
Where the body of a brief discusses certain facts, but then claims in a footnote simply that the trial court erred, citing a case without explanation, that is an insufficient brief to require the court to address the merits of the issue; in an insurance case in which the class plaintiffs contended that the company’s policies violated NM law, when the trial court denied the company summary judgment but offered to conduct a hearing on the disputed factual contentions, which was then held without objection, plaintiffs waived their right to jury trial; where insurance company’s practice regarding claims evaluation, including the computer program that it used to evaluate claims, was approved as not violating the company’s policies or NM law by the Superintendent of Insurance, the trial court correctly held that the regulatory exemption statute precluded plaintiffs’ claims under the particular facts of this case.
In re Adoption Petition of Bobby Antonio R., CA 25,877 (Fry) on rehearing Sep 7, 2006, aff’d in part and rev’d in part SC 30,021, 30,027 (Bosson) Nov 26, 2007
Where mother and father had a sexual relationship that ended 7 months prior to the child’s birth and where father first found out about the child 2 months after birth although he should have known about the child sooner, his pre-birth actions cannot be used to terminate parental rights under the theory that the parent caused a disintegration of the parent-child relationship; a putative father can become an acknowledged father by filing a paternity petition, thereby satisfying the statute, even if that happens after the adoption petition is filed; a father does not have a relationship with the child in utero and therefore cannot cause the relationship to disintegrate by not supporting the mother; nor is such failure to support abandonment.
Aff’d to the extent that substantial evidence showed that father should have known of child and to the extent that father filed in the registry too late as fathers have only ten days from birth in which to file, but rev’d because the act does not allow fathers to file a paternity petition at any time, even though there is no specific statute setting a deadline, because the act as a whole reflects an intent to have fathers timely assert their rights, and the statute instead requires the paternity petition to be filed prior to the adoption petition if a father is relying on acknowledgment pursuant to filing a paternity petition.
H-B-S Partnership v. Aircoa Hospitality Svcs. Inc., CA 26,601 (Wechsler) Nov 26, 2007
Where Rules of Civil Procedure provided a shorter time than local rules for filing cost bill (due to history of adoption of provisions) and litigant followed local rules, proper time limit is set in state-wide rule, and district court could not construe state-wide rule to not apply, but it had discretion under Rule 1-006 to extend time for excusable neglect, even though litigant did not specifically so move; transcript costs were historically recoverable and language in Rule 1-054 saying that they are recoverable when approved by the court does not require prior court approval; because district court affirmatively explained why staff and photocopy expenses of expert were part of expert’s opinion development, that cost is affirmed; party opposing costs did not provide authority on appeal for proposition that use of depositions by experts was not an allowable cost and therefore they are allowed.
Montoya v. Tecolote Land Grant, CA 26,170 (Vigil) Nov 26, 2007
Where Tecolote acquired land as a community land grant and where Congress confirmed it, 1876 U.S. S. Ct. case of Trameling governed and was to the effect that only Congress and not courts could adjudicate land grant claims; even though Congress’s adjudication in this case was without prejudice to adverse rights should they exist, case law establishes that people asserting private rights was not what Congress had in mind.
Littell v. Allstate Ins. Co., CA 26,268 (Fry) Nov 21, 2007
Trial court did not abuse discretion in admitting evidence of other sexual harassment when it insured that Plaintiff was aware of the incidents or in admitting evidence of her supervisor’s eventual discharge that post-dated Plaintiff’s employment when it was relevant to what Defendant did in response to complaints and punitive damages; substantial evidence supported Plaintiff’s claims of hostile work environment sexual harassment and retaliatory constructive discharge when there was abundant testimony that supervisor was always talking about sex and demeaning women (including many examples) and followed Plaintiff around in a threatening manner and yelled at her until his face was purple and this would cause a reasonable person to resign and was in part in retaliation for Plaintiff’s complaining to management about the sexualized workplace; jury’s compensatory verdict of $360,000 was supported by the evidence even though there was no evidence of treatment for emotional injuries; punitive damages were properly submitted to the jury because Plaintiff’s supervisor’s supervisor told Plaintiff and others that they had to take care of themselves when Plaintiff complained; $1,000,000 in punitive damages did not violate due process.
In re Vincent, SC 27,266 (per curiam) Nov 9, 2007
Court upholds constitutionality of endorsement clause of Code of Judicial Conduct, which prohibits judges from endorsing in media candidates for other judicial office, because it is narrowly tailored to serve the compelling interest of a fair and impartial judiciary (if that is the test used) and Court does not seem to think that is test because people have less of an interest in the election of others than in the election of themselves, which was at issue in the Republican Party v. White case; donating money to candidates is distinguished (although opinion implies that when amount is so high that it becomes public or is advertised, there may be a problem); formal reprimand is required because of judge’s previous violations and warnings by district’s chief judge.
City of Rio Rancho v. Logan, CA 26,829 (Castillo) Nov 9, 2007
Where landowner had two towers that were over the height limit for structures but the limit was not enforced and then the City adopted a new height limit for telecommunications towers, which was over the old limit for structures but under the height of the two old towers and when the law on the new height limit grandfathered all presently existing telecommunications towers as legally permitted “nonconforming uses,” the meaning of that phrase did not change something that was not previously permitted into something that was now permitted and instead simply meant that prior legal uses would be allowed to continue as nonconforming uses or at least the provision was ambiguous and evidence showed that this was what the City intended.
Hydro Resources Corp. v. Gray, CA 24,012 (Robinson) Jun 27, 2006, rev’d SC 29,931 (Bosson) Nov 9, 2007
When a mineral lessee develops water rights on behalf of itself and its lessor, the rights succeed to the lessor’s successor in interest and not to the lessee’s successor in interest.
Rev’d because mining is not irrigation, which is the only situation where water rights are necessarily appurtentant to land; here, the complicated transfers indicated that the lessor kept the water rights; nor does Mendenhall apply and nor does the Court of Appeals’ discussion of agency law as between the lessor and lessee of mineral leases, that have their own special rules of law.
State ex rel. CYFD v. Michael T., CA 27,366 (Fry) Nov 8, 2007
Exclusionary rule does not apply to abuse and neglect cases.
State ex rel. CYFD v. Senaida C., CA 26,545 (Kennedy) Nov 5, 2007
When grandmother was denied visitation and later dismissed from the case, the appeal from the dismissal order was timely to raise the question of visitation; trial court did not err in using abuse of discretion standard for determining whether CYFD considered grandmother as a placement; trial court did not err in terminating grandmother’s visitation when child was adopted after mother’s parental rights were terminated; grandmother’s due process rights were not violated when she was given the opportunity to be heard throughout the case; trial court was not required to order an open adoption although it had equitable power to do so; even where counsel is raising issues at indigent client’s request, there still must be citations to the record and relevant authority.
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