september 24, 2014 • volume 53, no. 39 · 4 bar bulletin - september 24, 2014 - volume 53, no. 39...

Inside This Issue

September 24, 2014 • Volume 53, No. 39

Table of Contents .................................................... 3

N.M. Board of Legal Specialization Comments Solicited ............................................... 4

Vacancy on the Judicial Performance Evaluation Commission ....................................... 4

Fifth Judicial District Court Investiture Ceremony of Judge Kea W. Riggs ..... 4

Nominate an NREEL Lawyer of the Year ........... 5

Young Lawyers Division 2014 Election Notice .............................................. 5 Diversity Kick-off Event a Success ....................... 7

Expired Court Monitor Certifications ................ 8

Clerk’s Certificates ................................................ 14

From the New Mexico Supreme Court

2014-NMSC-027, No. 34,150: Kimbrell v. Kimbrell ........................................ 18

From the New Mexico Court of Appeals

2014-NMCA-078, No. 32,559: Buke, LLC v. Cross Country Auto Sales, LLC .................... 22

2014-NMCA-079, No. 32,625: Galetti v. Reeve ................................................. 31

2014-NMCA-080, No. 32,650: State v. Tarin ..................................................... 34

Forest Treasure by Katrina Lum (see page 3) Weems Art Gallery

2 Bar Bulletin - September 24, 2014 - Volume 53, No. 39

CENTER FOR LEGAL EDUCATION

CLE PlannerO

ct. 2

Oct

. 3

All live seminars are held at the State Bar Center, 5121 Masthead NE, Albuquerque. They include course materials, CLE credit and filing fees for New Mexico and Texas. Full-day programs also include continental breakfast, breaks and buffet lunch.

Register online at www.nmbarcle.org or call 505-797-6020.

5.5 G

also available viaLIVE WEBCAST

at the standard fee

8:30 a.m. Registration9 a.m. New Rules Regarding Mental Health Treatment

Guardianship J. Gabrielle Sanchez-Sandoval, general counsel, New

Mexico Department of Health; Nancy Koenigsberg, legal director, Disability Rights New Mexico

10:30 Break10:45 a.m. Healthcare Antitrust Law Katie Reilly, of counsel, Wheeler, Trigg, O’Donnell,

Denver11:45 a.m. Lunch (provided at the State Bar Center) Health Law Section Annual Meeting

1 p.m. Update on Qui Tam/Government Investigations Raul Torrez, Torrez Law & Strategy LLC2 p.m. Break2:15 p.m. Supervision Issues Regarding Physician

Extenders Catie Russell and Ryan Harrigan, SaucedoChavez, P.C.3:15 p.m. Break3:30 p.m. Affordable Care Act Update Paige Duhamel, staff attorney, Southwest Women’s

Law Center4:30 p.m. Adjournment

2014 Health Law SymposiumThursday, Oct. 2, 2014 • State Bar Center, Albuquerque

Standard Fee: $199Health Law Section members, government, legal services attorneys, and Paralegal Division members: $169Co-sponsor: Health Law Section

1.5 EP4.5 G

also available viaLIVE WEBCAST

at the standard fee

8 a.m. Registration8:30 a.m. Federal Employment Case Law

and Regulatory Update Anne Noel Occhialino, Appellate Attorney, Office of

General Counsel at the Equal Employment Opportunity Commission, Washington, D.C.

9:45 a.m. State Employment Law and Legislative Update Victor Montoya, Jackson Lewis, P.C., Albuquerque10:15 a.m. Break10:30 a.m. The Affordable Care Act: Health Savings

Accounts, High-deductible Health Plans and Benefits, and the Many, Many Ways to Sink a Ship

Kathy Barrow, Jackson Lewis, P.C., Rapid City, S.D. 11:45 a.m. Lunch (provided at the State Bar Center) Employment and Labor Law Annual Meeting

1p.m. Judges Panel: Ethics in E-Discovery: Litigation Holds, and the Duty to Preserve and Produce Electronically Stored Evidence

U.S. District Judge James O. Browning, and U.S. Magistrate Judge Gregory B. Wormuth. Moderated by Erin Langenwalter, Chair, Employment and Labor Law Section.

2:30 pm Break 2:45 p.m. Labor Law Update: Northwestern University

and Beyond Stephen Curtice, Youtz & Valdez, P.C., Albuquerque3:15 p.m. Hot Topics: Social Media and Employment Law Erin Langenwalter, Chair, Employment and

Labor Law Section4:15 p.m. Adjournment

2014 Employment and Labor Law InstituteFriday, Oct. 3, 2014 • State Bar Center, Albuquerque

Standard Fee: $219Employment and Labor Law Section members, government, legal services attorneys, and Paralegal Division members: $189Co-sponsor: Employment and Labor Law Section

http://www.nmbarcle.org

Bar Bulletin - September 24, 2014 - Volume 53, No. 39 3

Notices ................................................................................................................................................................4Legal Education Calendar .............................................................................................................................9Writs of Certiorari ......................................................................................................................................... 11List of Court of Appeals’ Opinions ........................................................................................................... 13Clerk’s Certificates ......................................................................................................................................... 14Recent Rule-Making Activity ..................................................................................................................... 17Opinions

From the New Mexico Supreme Court2014-NMSC-027, No. 34,150: Kimbrell v. Kimbrell ................................................................... 18

From the New Mexico Court of Appeals2014-NMCA-078, No. 32,559: Buke, LLC v. Cross Country Auto Sales, LLC ...................... 22

2014-NMCA-079, No. 32,625: Galetti v. Reeve ........................................................................... 31

2014-NMCA-080, No. 32,650: State v. Tarin ................................................................................ 34

Advertising ............................................................................................................................................. 37

Officers, Board of Bar Commissioners Erika Anderson, President Martha Chicoski, President-Elect J. Brent Moore, Vice President Scotty A. Holloman, Secretary-Treasurer Andrew J. Cloutier, Immediate Past President

Board of Editors Ian Bezpalko, Chair George C. Kraehe Kristin J. Dalton Maureen S. Moore Jocelyn C. Drennan Tiffany L. Sanchez Jennifer C. Esquibel Mark Standridge Bruce Herr Joseph Patrick Turk

State Bar Staff Executive Director Joe Conte Managing Editor D.D. Wolohan 505-797-6039 • [email protected] Communications Coordinator Evann Kleinschmidt 505-797-6087 • [email protected] Graphic Designer Julie Schwartz [email protected] Account Executive Marcia C. Ulibarri 505-797-6058 • [email protected] Digital Print Center Manager Brian Sanchez Assistant Michael Rizzo

©2014, State Bar of New Mexico. No part of this publica-tion may be reprinted or otherwise reproduced without the publisher’s written permission. The Bar Bulletin has the authority to edit letters and materials submitted for publication. Publishing and editorial decisions are based on the quality of writing, the timeliness of the article, and the potential interest to readers. Appearance of an article, editorial, feature, column, advertisement or photograph in the Bar Bulletin does not constitute an endorsement by the Bar Bulletin or the State Bar of New Mexico. The views expressed are those of the authors, who are solely responsible for the accuracy of their citations and quotations. State Bar members receive the Bar Bulletin as part of their annual dues. The Bar Bulletin is available at the subscription rate of $125 per year and is available online at www.nmbar.org.The Bar Bulletin (ISSN 1062-6611) is published weekly by the State Bar of New Mexico, 5121 Masthead NE, Albuquerque, NM 87109-4367. Periodicals postage paid at Albuquerque, NM. Postmaster: Send address changes to Bar Bulletin, PO Box 92860, Albuquerque, NM 87199-2860.

505-797-6000 • 800-876-6227 • Fax: 505-828-3765 E-mail: [email protected]. • www.nmbar.org

September 24, 2014, Vol. 53, No. 39

Table of Contents

Meetings

septeMber

25 Natural Resources, Energy and Environmental Law Section BOD, Noon, via teleconference

25 Senior Lawyers Division BOD, 4 p.m., State Bar Center

26 Immigration Law Section BOD, Noon, via teleconference

OctOber

1 Employment and Labor Law Section BOD, Noon, State Bar Center

2 Health Law Section BOD, 9 a.m., via teleconference

7 Bankruptcy Law Section BOD, Noon, U.S. Bankruptcy Court

8 Children’s Law Section BOD, Noon, via teleconference

8 Taxation Section BOD, 11 a.m., via teleconference

state bar WOrkshOps

septeMber

24 Consumer Debt/Bankruptcy Workshop 6 p.m., State Bar Center

27 Consumer Debt/Bankruptcy Workshop, 9 a.m., The Law Office of Kenneth Egan, Las Cruces

OctOber

1 Divorce Options Workshop 6 p.m., State Bar Center

1 Civil Legal Fair 10 a.m.–1 p.m., Second Judicial District Court, Third Floor Conference Room, Albuquerque

14 Civil Legal Clinic for Veterans 9 a.m.–noon, Raymond G. Murphy VA Medical Center, SCI Meeting Room, Albuquerque

27 Consumer Debt/Bankruptcy Workshop, 9 a.m., The Law Office of Kenneth Egan, Las Cruces

Cover Artist Although her college education was based in biochemical engineering, Katrina Lum retained a creative side that directed her endeavors more than she realized. When she stumbled upon jewelry design, a world of creativity opened up to her. Lum incorporates her world travels and scientific background into her artistry. Her jewelry begins as original drawings that she hand carves and impresses into precious metal clays. Images of nature, animals, and world cultures dominate her designs. To view more of her work, visit www.katrinalum.com.

mailto:[email protected]




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http://www.katrinalum.com


NoticesProfessionalism Tip

With respect to parties, lawyers, jurors, and witnesses:

I will do my best to ensure that court personnel act civilly and professionally.

and 13th Judicial Districts from which the Supreme Court shall select one member to serve through Sept. 14, 2017. Members interested in serving on the JPEC should send a letter of interest and brief résumé by Oct. 10 to Executive Director Joe Conte, State Bar of New Mexico, PO Box 92860, Albuquerque, NM 87199-2860; fax to 828-3765; or email [email protected].

Fifth Judicial District CourtJudicial Nominees The Judicial District Court Judicial Nominating Commission convened Sept. 11 in Lovington and completed its evaluation of the one applicant for the vacancy on the Fifth Judicial District Court, Lea County. The Commission recommends that the applicant’s name be forwarded to Gov. Susana Martinez:

Lee A. Kirksey

Investiture Ceremony of Judge Kea W. Riggs Members of the legal community are invited to attend the investiture ceremony of Kea W. Riggs at 3 p.m. on Sept. 26 at the Chaves County Courthouse, 400 North Virginia Ave., Roswell. A reception will follow immediately.

Reassignment of Cases to Judge Kea W. Riggs Effective Sept. 15, a mass reassignment of cases has been occuring pursuant to Supreme Court Rule 23-109. Judge Kea W. Riggs is being assigned all cases previously assigned to Judge Charles C. Currier, Divi-sion VIII. Pursuant to Supreme Court Rule 1-088.1, parties who have not yet exercised a peremptory excusal will have 10 days from Sept. 17 to excuse Judge Riggs.

Seventh Judicial District CourtReassignment of Cases Due to the Retirement of Judge Kase III Due to the retirement of Judge Ed-mund H. Kase III, Judge Mercedes Mur-phy is assigned to his cases. Pursuant to NMRA 1-088.1, parties who have not yet exercised a peremptory excusal will have until Oct. 23 to excuse the successor judge.

state bar neWsAttorney Support Groups• Oct. 6, 5:30 p.m. First United Methodist Church, 4th

and Lead SW, Albuquerque (The group meets the first Monday of the month.)

• Oct. 13, 5:30 p.m. UNM School of Law, 1117 Stanford NE,

Albuquerque, Room 1119 (The group meets the second Monday of the month.)

• Oct. 20, 7:30 a.m. First United Methodist Church, 4th

and Lead SW, Albuquerque (The group meets the third Monday of the month.)

• For more information, contact Bill Stratvert, 505-242-6845.

Board of Bar Commissioners2014 Election Notice Notice is hereby given that the 2014 election of six commissioners for the State Bar of New Mexico will close at noon, Dec. 1. Nominations of the office of bar commissioner shall be by the written petition of any 10 or more members of the State Bar who are in good standing and whose principal place of practice is in the respective district. Members of the State Bar may nominate and sign for more than one candidate. Nomination petitions must be received by 5 p.m., Oct. 17. Mail nomination petitions to: Executive Direc-tor Joe Conte, State Bar of New Mexico, PO Box 92860, Albuquerque, NM 87199-2860 or [email protected]. Expiring terms, the nomination petition, and more informa-tion are available in the Sept. 17 (Vol. 53, No. 38) Bar Bulletin or online at http://www.nmbar.org/aboutsbnm/governance/bbcelections.html. Direct inquiries to 505-797-6099 or [email protected].

Business Law SectionBusiness Lawyer of the Year Award The Business Law Section has issued a call for nominations for the Business Lawyer of the Year Award. Selection criteria is available at http://www.nmbar.org/AboutSBNM/sections/BusinessLaw/bus_docs/criteriaforbusinesslawyeroft heyear.pdf. Nominees do not have to be section members, but membership is a

cOurt neWsN.M. Board of Legal SpecializationComments Solicited The following attorneys are applying for certification as a specialist in the areas of law identified. Application is made under the New Mexico Board of Legal Special-ization, Rules 19-101 through 19-312 NMRA, which provide that the names of those seeking to qualify shall be released for publication. Further, attorneys and others are encouraged to comment upon any of the applicants’ qualifications within 30 days after the publication of this notice. Address comments to New Mexico Board of Legal Specialization, PO Box 93070, Albuquerque, NM 87199.

Federal Indian Law Carolyn J. Abeita

Natural Resources Law Arnold J. Olsen

New Mexico Compilation CommissionNew Publications Available The official print New Mexico Statutes Annotated 1978® with compiled, an-notated 2014 legislation is now available exclusively through the New Mexico Compilation Commission. The online NMSA 1978 with new or amended sec-tions effective in May and July was released on the laws’ effective dates exclusively on nmonesource.com. New Mexico Appellate Reports®, Volume 5, also is available. The official New Mexico Criminal and Traffic Law Manual™ with DVD, relied on by law enforcement, courts, district attorneys, public defenders and criminal defense lawyers, will be available later this month. For more information, call 505-827-4821.

Judicial Performance Evaluation Commission Vacancy The New Mexico Supreme Court has requested the State Bar of New Mexico’s assistance in filling a lawyer vacancy on the Judicial Performance Evaluation Commission. The nature of the Commis-sion requires the Court to balance the Commission’s membership by taking into account gender, political affiliation, ethnic-ity and geographic diversity. The Court is requesting the State Bar president to nominate three female lawyers of diverse ethnic backgrounds from the Second, 11th



http://www.nmbar.org/aboutsbnm/governance/

http://www.nmbar.org/aboutsbnm/governance/


http://www.nmbar


www.nmbar.org

New Mexico Lawyers and Judges

Assistance Program

Help and support are only a phone call away. 24-Hour Helpline

Attorneys/Law Students505-228-1948 • 800-860-4914

Judges888-502-1289

www.nmbar.org/JLAP/JLAP.html

positive factor. Nominations are due by Oct. 1 and should be submitted to D.D. Wolohan, [email protected].

Cuba Trip Rescheduled for November If you were contemplating joining State Bar President Erika E. Anderson and the New Mexico delegation to visit the legal institutions of Havana, Cuba, but the Oc-tober dates did not work out for you, you’re in luck! The trip has been rescheduled for Nov. 9–14. A parallel cultural excursion for participants’ spouse or guest is available to those who register. Full information is available at www.professionalsabroad.org or 1-877-298-9677.

Natural Resources, Energy and Environmental Law SectionNominations for NREEL Lawyer of the Year The Natural Resources, Energy and Environmental Law Section will recognize an NREEL Lawyer of the Year who, within his or her practice and location, is the model of a New Mexico natural resources, energy, or environmental lawyer. Section members may nominate as many candi-dates as they like. A nominee does not have to be a member of the NREEL Section, but membership shall be considered a posi-tive factor. Go to http://www.nmbar.org/AboutSBNM/sections/NaturalResources/natres_docs/2014NREELAwardCriteria.pdf for criteria. Deadline to submit ap-plications to D.D. Wolohan, [email protected], is Sept. 25. The plaque will be awarded Oct. 10 at the section’s annual meeting during its daylong CLE program.

New Mexico Medical Review CommissionCLE Fee Waiver Opportunity The New Mexico Medical Review Commission, in an effort to recruit new Commission members and to reward existing members, is offering panelists the opportunity to have their fee waived on the NMMRC’s five-hour medical malpractice CLE on Dec. 19. Those interested should serve on four panels before Dec. 1. For more information, call Judy Durzo at 505-797-8540, or Ellen Kelly at 505-764-6019.

Paralegal DivisionLuncheon CLE Series The Paralegal Division invites mem-bers of the legal community to bring

a lunch and attend “Legal Malpractice Litigation: Lawyers’ Duties and Policies with Eroding Limits” (1.0 G) presented by Josh Allison. The program will be held from noon–1 p.m., Oct. 8, at the State Bar Center (registration fee for attorneys–$16, members of the Paralegal Division–$10, non-members–$15). Registration be-gins at the door at 11:45 a.m. For more information, contact Cheryl Passalaqua, 505-247-0411, or Evonne Sanchez, 505-222-9352. The program will be available by teleconference to the State Bar Center at three locations: • Santa Fe: Montgomery & Andrews,

325 Paseo de Peralta, Santa Fe. Contact Donna Ormerod, 505-570-4593.

• Roswell: Atwood, Malone, Turner & Sabin, 400 N. Pennsylvania, Ste. 1100. Contact Tomma Shumate, 575-622-6221.

• Farmington: Titus & Murphy, 2021 E. 20th Street. Contact Shannon Krens, 505-326-6503.

Young Lawyers Division2014 Election Notice All members of the State Bar who have practiced law for five years or less or are under the age of 36 are eligible to serve on the YLD board of directors. The following positions are currently available for one-year terms (Jan. 1, 2015-Dec. 31, 2015): director-at-large, position 2; director-at-large, position 4; region 2 director (currently held by Joachim Marjon, 1st, 8th and 4th Judicial districts); region 4 director (currently held by Erin Atkins, 3rd, 6th, 7th and 12th Judicial districts). For more information and to obtain a nomination petition, visit www.nmbar.org/aboutSBNM/YLD/YLDelection.html. Petitions must be received in the State Bar office by 5 p.m., Oct. 10. Should any of the positions be contested, a ballot link will be emailed to YLD members by Nov. 1.

unMLaw LibraryHours Through Dec. 13Building & Circulation Monday–Thursday 8 a.m.–10 p.m. Friday 8 a.m.–6 p.m. Saturday 8 a.m.–5 p.m. Sunday Noon–8 p.m.Reference Monday–Friday 9 a.m.–6 p.m. Saturday–Sunday ClosedClosures Nov. 27–28: Thanksgiving

Other barsAlbuquerque Bar AssociationMonthly Membership Luncheon The Albuquerque Bar Association’s membership luncheon will be held at noon, Oct. 7, at the Embassy Suites Hotel, 1000 Woodward Pl. NE, Albuquerque. Secretary Hannah Skandara of the New Mexico Public Education Department will present “Public Education Update.” Attorney Marty Esquivel will also present “Education Law Update” (1.0 G) from 1:15–2:15 p.m. Register by noon, Oct. 3, at www.abqbar.org.

Albuquerque Lawyers ClubMonthly Lunch Meeting The Albuquerque Lawyers Club invites members of the legal community to its October lunch meeting. Mark Rudd will

Auto And Home InsurAnce

SBNM members receive an exclusive group discount off already competitive rates, extra savings for insuring both car and home, and discounts based on driving experience, car and home safety features and much more.

Contact Edward Kibbee, (505) 323-6200 ext. 59184, or visit

www.libertymutual.com/edwardkibbee.

Member BenefitF e a t u r e d


http://www.libertymutual.com/edwardkibbee

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http://www.nmbar.org/

http://www.nmbar

http://www.abqbar.org


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present “Evolution of a Radical: From Out-side to Inside the Fold.” Th e lunch meeting will be held on at noon, Oct. 1 at Seasons Rotisserie & Grill, 2031 Mountain Road, NW, Albuquerque. Cost: Free to members; $30 non-members. For more information, email [email protected].

New Mexico Criminal Defense Lawyers AssociationCriminal Defense CLE in Roswell The New Mexico Criminal Defense Lawyers Association is holding the semi-nar “Southeastern N.M. Regional CLE” (3.0 G, 1.0 EP) on Oct. 10 at the Roswell Country Club in Roswell. Topics will include proper police procedures and investigation and an hour of ethics credit focused on efficient case management through the use of technology. To register, visit www.nmcdla.org.

New Mexico Defense Lawyers AssociationAnnual Awards Luncheon and Meeting The New Mexico Defense Lawyers Association will present its 2014 Defense Lawyer of the Year Award to Stephen G. French of French & Associates, PC, and the 2014 Young Lawyer of the Year Award to Alicia M. Santos of O’Brien & Padilla, PC, at its annual awards luncheon on Oct. 3 at the Hotel Andaluz in Albuquerque. Th e luncheon will be followed by a CLE program featuring nationally recognized speaker James P. Cooney III, who will provide a comprehensive overview and discussion of the Duke lacrosse prosecu-tions, entitled “Anatomy of a Hoax” (1.5 G). A panel of retired judges will then discuss “What Can Mediation Do For You? Th e Ethical Role of the Mediator and Tips for Obtaining Eff ective Settlements” (1.0 EP). Th e event will conclude with a reception. For more information and registration, visit www.nmdla.org, or call 505-797-6021.

New Mexico Hispanic Bar AssociationCLE and Meet and Greet in Las Cruces Th e New Mexico Hispanic Bar Asso-ciation will present “Civility Matters” (1.0 EP, pending MCLE approval) with U.S. District Court Judge Carmen Gaza at 3:30 p.m., Sept. 26, at St. Clair’s Winery & Bis-tro, 1720 Avenida de Mesilla, Las Cruces. Th e cost is $20 for NMHBA members and

$35 for non-members. Aft er the CLE, join the NMHBA for a meet and greet from 5–7 p.m. at the winery. Appetizers will be provided. For more information or to register, visit www.nmhba.net. Th e CLE and meet and greet are sponsored in part by Allstate.

Other neWsNew Mexico Legal Aid Giving Back to Those Who Have Served On Sept. 24, New Mexico Legal Aid will hold its fi rst annual “Feat for Justice” fundraising hike in the Grand Canyon. Albuquerque attorney Matthew Vance will embark on a 48-mile journey in 22 hours or less. All proceeds from the event benefi t the Veterans Justice Project. Help New Mexico’s veterans by making a donation at www.togetherforjusticenm.org. Sup-port will enable one more veteran to keep his or her home, reclaim dignity, obtain health care or disability benefi ts and escape domestic violence. Learn more about the hike and get live updates on Facebook, http://www.facebook.com/feat4justice.

New Mexico Workers’ Compensation AdministrationFree Disability Guidelines Training Th e New Mexico Workers’ Compensa-tion Administration adopted the Offi cial Disability Guidelines, effective July 1. According to the adoption, all medical ser-vices rendered pursuant to recommended treatment contained in the most recent edition of ODG is presumed reasonable and necessary. Th e most recent edition is “ODG on the Web,” a subscription-based site. Th e New Mexico WCA has sponsored access to this site for New Mexico provid-ers and attorneys practicing workers’ com-pensation. Complimentary ODG training sessions will be held on Oct. 22 at 9 a.m., 1 p.m. and 6 p.m. All sessions will be at the WCA building, 2410 Centre Ave SE, Albuquerque. Th e trainings will provide a brief overview of how the evidence-based medical treatment guidelines in ODG were created, who writes the guidelines, how to access ODG on the web and a live demonstration. Contact Victoria Wagner at 505-841-6844 or [email protected] to register (required).

Destruction of Mediation Exhibits In accordance with NMAC 11.4.4.9 (P)–Forms, Filing and Hearing Procedures:

Return of Records, the New Mexico Work-ers’ Compensation Administration will be destroying all mediation exhibits fi led in cases 1986–Aug. 15, 2014, in which the recommended resolution has been issued, excluding cases on appeal. Th e exhibits are stored at 2410 Centre Ave SE, Albuquer-que. Th ey can be picked up until Sept. 30. For more information, contact the WCA at 1-800-255-7965 and ask for Dana Chavez, clerk of the court. Exhibits not claimed by the specifi ed date will be destroyed.

Settlement Week Th e New Mexico Workers’ Compensa-tion Administration will host “Settlement Week” Oct. 27–31. In past years, the event has been successful in streamlining the court dockets by either resolving claims or moving claims closer to settlement. In-person settlement conferences will be held at the WCA offi ces in Albuquerque. Parties in remote locations may participate by telephone or by video from WCA fi eld offices in Farmington, Las Cruces, Las Vegas, Lovington, Roswell and Santa Fe. Parties wanting to have cases included in Settlement Week should contact Beverly Eschberger at 505-841-6089 or [email protected].

Santa Fe Neighborhood Law CenterNeighborhood Law and Policy CLE Conference Th e Annual Neighborhood Law and Policy Conference (10.0 G, 2.0 EP), co-sponsored by the City of Santa Fe, will be held from 8 a.m.–4:30 p.m., Dec. 11–12, at the Santa Fe Community Convention Center. Tuition is $350, reduced to $325 for early registrations and payment received by Nov. 27. A free continental breakfast and box lunch will be provided both days. To register, visit http://sfnlc.com/.

Submitannouncementsfor publication in the Bar Bulletin to

[email protected] by noon Monday the week prior to publication.



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Thank You to

Keleher & McLeod, P.A. for Making the September Civil Legal Clinic a Success!

The Second Judicial District Pro Bono Committee and the Volunteer Attorney Program would like to thank Keleher & McLeod and its attorneys and staff for volunteering their time and expertise at the Sept. 3 Civil Legal Clinic. Keleher & McLeod is the first firm to host one of the civil legal clinics, which are held the first Wednesday of every month at the Second Judicial District Courthouse in the 3rd floor conference room from 10 a.m. until 1 p.m.

Twenty-three individuals were assisted at the September clinic. Remaining clinic dates: Oct. 1, Nov. 5 and Dec. 3.

If you or your firm are interested in volunteering, please contact Paul Haidle at

[email protected] or 505-797-6077.

Mary BehmJustin Breen

Cheryl HillDavid Peterson

W. Spencer Reid

The Young Lawyers Division sponsored a diversity kickoff event at the UNM School of Law on Sept. 6. The event was designed to increase collaboration among diverse bar associations and diverse law student organizations in the hopes of supporting achievement of one another’s goals.

Check out the redesigned eNews.

Get the latest updates on CLE classes, member

benefits, and other law-related activities around New Mexico.

To subscribe to eNews free of charge, contact

[email protected].




Bridget Apodaca 83Graciela Arambula 197Romy Baca 302Michelle Baldonado 321Theresa Blair 133Amy Cabeza de Baca 272Alberta Charly 303Viola Chavez 248Tonya Croft 318

Monique Florez 337Elaine Gomez 296Dawn Kynast 59Norma Lucero 126Mary Mora 247Lorraine Ortiz 242Michelle Pino-Mathis 262Jessica Pfieffer 278Lisa Pitchford 103

The Board GoverninG The recordinG of Judicial ProceedinGs

a Board of The suPreme courT of new mexico

exPired courT moniTor cerTificaTionsThe following list for publication are the certification numbers and names of those court monitors whose New Mexico certifications expired as of July 31, 2014:

Stephanie Quintana 185Tamara Reichel 306Patti Richardson 148Sheralee Savage 130Rossie Sepulveda 339Francine Teran 121Mickie Vega 325Tammy Vigil 216Melanie Whitaker 307

Name Monitor No. Name Monitor No. Name Monitor No.

For more information, visit www.ccrboard.com.

At the invitation of the Union of Cuban Jurists, the State Bar of New Mexico is organizing a delegation to visit Cuba to research the country’s legal system. State Bar President Erika Anderson will lead the delegation. We invite you to join in this unique opportunity.

This delegation will convene in Miami on Nov. 9, and will return to Miami on Nov. 14. Please see www.professionalsabroad.org for itinerary details.

Our delegation will undertake a comprehensive study of the Cuban legal system, from the teaching of law, to the criminal justice and judicial systems; civil and family code; business and commercial rights; and resolving domestic and international commercial conflicts. CLE credit will not be available.

A parallel program of people-to-people activities will be available for spouses and guests.

For more information, Professionals Abroad, 1-877-298-9677 or www.professionalsabroad.org

CUBACUBANew dates!

Nov. 9-14

http://www.ccrboard.com




Legal EducationSeptember

24 Drafting Escrow Agreements in Business and Real Estate

1.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

26 Positive Psychology for Lawyers—Neuroscience and the Lawyer’s Brain

3.0 EP Live Seminar Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

26 Keeping Current Symposium 6.0 G Live Seminar Society of Financial Service

Professionals-NM-West TX Chapter 505-821-7130

October

2 2014 Health Law Symposium 5.5 G Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

2 Asset Protection for Real Estate 1.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

3 2014 Employment and Labor Law Institute

4.5 G, 1.5 EP Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

7–8 Inter-species Conversions and Mergers, Parts 1–2


9 Police Misconduct: Understanding §1983 Civil Rights Actions

3.0 G Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

10 Fire in the Hole: What’s Exploding in New Mexico Mining Law


10 Southeastern N.M. Regional CLE 3.0 G, 1.0 EP Roswell New Mexico Criminal Defense

Lawyers Association 505-992-0050 [email protected]

14 The 29th Annual Bankruptcy Year in Review Seminar

6.0 G, 1.0 EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

14 Criminal Issues in Immigration Law

5.5 G Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

14 11th Annual Spring Elder Law Institute: Current Medical Developments Every Elder Law Attorney Should Know

2.5 G Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

14 2014 Ethicspalooza: The Ethics of Social Media Use

1.0 EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

14 2014 Ethicspalooza: Charging a Reasonable Fee


14 2014 Americans with Disabilities Act Update


15 Incentive Trusts in Estate Planning: Promise and Peril


16 Practice Management, the Cloud, and Your Firm

3.0 G Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

16 Establishing Your Online Presence, Ethically and Professionally

2.0 EP Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org




















Legal Education www.nmbar.org

21 2014 Ethicspalooza: Proper Trust Accounting


21 2014 Ethicspalooza: Ethically Managing Your Practice


21 Governance of Private and Family-Controlled Companies


22–23 Great Adverse Depositions: Principles and Principal Techniques

6.0 G Webinar Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

24 Attorney Ethics, Advertising and the Internet

1.0 EP National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

24–25 2014 Family Law Institute 10.0 G, 2.0 EP Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

28–29 Fiduciary and Income Tax Issues in Estate Planning, Parts 1–2


16 Advanced Oil and Gas Energy Resources

11.2 G, 1.5 EP Video Replay State Bar of Texas 512-427-1426 www.texasbarcle.com

17 New Mexico Administrative Law Institute 2014


21 Skeptically Determining the Limits of Scientific Evidence V

5.0 G, 1.5 EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

21 Accounting for Lawyers 6.0 G Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

October

November

4–5 Drafting Buy/Sell Agreements, Parts 1–2


6 Attorney Ethics When Supervising Other Attorneys


10 Estate Planning for Pets 1.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

11–12 Real Estate Joint Ventures, Parts 1–2


13 Attorney Ethics and Dissolution of a Law Firm


14 Ethics and Dishonest Clients 1.0 EP National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

17–18 Estate Planning for MDs, Jds, CPAs and Other Professionals, Parts 1–2


25 2014 Sex Harassment Update 1.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org









http://www.texasbarcle.com













Joey D. Moya, Chief Clerk New Mexico Supreme Court PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860

Writs of CertiorariAs Updated by the Clerk of the New Mexico Supreme Court

Petitions for Writ of Certiorari Filed and Pending:

Date Petition FiledNo. 34,891 Rabo v. Terra COA 32,697 09/12/14No. 34,888 Gunderson v.

City of Roswell COA 32,851 09/12/14No. 34,889 State v. Ramirez COA 33,667 09/11/14No. 34,887 State v. Allen COA 32,774 09/10/14No. 34,886 State v. Sabeerin COA 31,412/31,895 09/10/14No. 34,885 Savage v. State 12-501 09/08/14No. 34,882 Garcia v. Janecka 12-501 09/04/14No. 34,866 State v. Yazzie COA 32,476 09/04/14No. 34,841 State v. Lope COA 32,511 09/04/14No. 34,836 State v. Anderson COA 31,727 09/02/14No. 34,877 State v. Castillo COA 32,850 08/29/14No. 34,876 State v. Henderson COA 33,636 08/29/14No. 34,855 Rayos v. State COA 32,911 08/29/14 Response filed 9/8/14No. 34,826 State v. Trammel COA 31,097 08/29/14 Response filed 9/12/14No. 34,875 Derringer v. Derringer COA 32,982 08/28/14No. 34,874 State v. Gilmore COA 33,752 08/27/14No. 34,878 O’Neill v. Bravo 12-501 08/26/14No. 34,871 State v. West COA 33,296 08/26/14No. 34,872 State v. Romero COA 33,585 08/25/14No. 34,870 McDowell v. Galbriso COA 32,356 08/25/14No. 34,869 Denning v. Kalloni COA 32,566 08/25/14 Response filed 9/9/14No. 34,864 Stills v. State 12-501 08/21/14No. 34,863 State v. Hermosillo COA 32,891 08/21/14No. 34,862 Whatley v. Williams 12-501 08/20/14No. 34,847 State v. Gerlinda C. COA 33,537 08/19/14No. 34,861 State v. Matthews COA 33,591 08/18/14No. 34,860 State v. Lopez COA 33,488 08/18/14No. 34,859 Hacessa v. Janecka 12-501 08/15/14No. 34,854 State v. Alex S. COA 32,836 08/13/14No. 34,796 Miller v. Ortiz 12-501 08/08/14No. 34,830 State v. Mier COA 33,493 07/25/14 Response ordered; due 9/18/14No. 34,819 McGhee v, State 12-501 07/17/14No. 34,812 Ruiz v. Stewart 12-501 07/11/14No. 34,801 Beserra v. N.M. Taxation

Revenue Dept. COA 33,641 07/07/14 Response filed 8/28/14No. 34,797 Weiss v.

Board of Education COA 32,844 07/03/14No. 34,777 State v. Dorais COA 32,235 07/02/14 Response filed 7/31/14No. 34,790 Venie v. Velasquz COA 33,427 06/27/14 Response ordered; due 8/22/14No. 34,765 Helfferich v. Frawner 12-501 06/24/14No. 34,793 Isbert v. Nance 12-501 06/23/14No. 34,775 State v. Merhege COA 32,461 06/19/14No. 34,776 Serna v. Franco 12-501 06/13/14

No. 34,748 Smith v. State 12-501 06/06/14No. 34,731 Helfferich v. Frawner 12-501 05/29/14No. 34,728 Martinez v. Bravo 12-501 05/29/14No. 34,739 Holguin v. Franco 12-501 05/21/14No. 34,706 Camacho v. Sanchez 12-501 05/13/14No. 34,615 Dominguez v. Bravo 12-501 05/12/14 Response ordered; due 9/18/14No. 34,691 Wetson v. Nance 12-501 05/07/14 Response ordered; filed 7/14/14No. 34,668 State v. Vigil COA 32,166 04/29/14 Response ordered; filed 7/23/14No. 34,633 Vespender v. Janecka 12-501 04/29/14No. 34,589 Seager v. State 12-501 04/23/14No. 34,574 Montano v. Hatch 12-501 04/21/14 Response ordered; filed 7/14/14No. 34,571 Fresquez v. State 12-501 04/07/14No. 34,563 Benavidez v. State 12-501 02/25/14 Response ordered; filed 5/28/14No. 34,560 Hartzell v. State 12-501 02/11/14 Response ordered; filed 7/29/14No. 34,289 Tafoya v. Stewart 12-501 08/23/13No. 34,303 Gutierrez v. State 12-501 07/30/13No. 34,067 Gutierrez v. Williams 12-501 03/14/13No. 33,868 Burdex v. Bravo 12-501 11/28/12 Response ordered; filed 1/22/13No. 33,819 Chavez v. State 12-501 10/29/12No. 33,867 Roche v. Janecka 12-501 09/28/12No. 33,539 Contreras v. State 12-501 07/12/12 Response ordered; due 10/24/12No. 33,630 Utley v. State 12-501 06/07/12

Certiorari Granted but not yet Submitted to the Court:

(Parties preparing briefs) Date Writ IssuedNo. 33,725 State v. Pasillas COA 31,513 09/14/12No. 33,837 State v. Trujillo COA 30,563 11/02/12No. 33,877 State v. Alvarez COA 31,987 12/06/12No. 33,930 State v. Rodriguez COA 30,938 01/18/13No. 33,994 Gonzales v. Williams COA 32,274 08/30/13No. 33,863 Murillo v. State 12-501 08/30/13No. 33,810 Gonzales v. Marcantel 12-501 08/30/13No. 34,311 State v. Favela COA 32,044 10/18/13No. 34,363 Pielhau v. State Farm COA 31,899 11/15/13No. 34,274 State v. Nolen 12-501 11/20/13No. 34,398 State v. Garcia COA 31,429 12/04/13No. 34,400 State v. Armijo COA 32,139 12/20/13No. 34,498 Hightower v. State 12-501 02/07/14No. 34,488 State v. Norberto COA 32,353 02/07/14No. 34,487 State v. Charlie COA 32,504 02/07/14No. 34,443 Aragon v. State 12-501 02/14/14No. 34,516 State v. Sanchez COA 32,994 02/14/14No. 34,473 Mandeville v.

Presbyterian Healthcare COA 32,999 03/07/14

Effective September 12, 2014


Writs of CertiorariNo. 34,548 State v. Davis COA 28,219 03/14/14No. 34,558 State v. Ho COA 32,482 03/21/14No. 34,549 State v. Nichols COA 30,783 03/28/14No. 34,526 State v. Paananen COA 31,982 03/28/14No. 34,522 Hobson v. Hatch 12-501 03/28/14No. 34,582 State v. Sanchez COA 32,862 04/11/14No. 34,644 Valenzuela v. Snyder COA 32,680 05/01/14No. 34,637 State v. Serros COA 31,975 05/01/14No. 34,613 Ramirez v. State COA 31,820 05/01/14No. 34,607 Lucero v.

Northland Insurance COA 32,426 05/01/14No. 34,554 Miller v.

Bank of America COA 31,463 05/01/14No. 34,476 State v. Pfauntsch COA 31,674 05/01/14No. 34,694 State v. Salazar COA 33,232 06/06/14No. 34,669 Hart v. Otero County Prison 12-501 06/06/14No. 34,650 Scott v. Morales COA 32,475 06/06/14No. 34,630 State v. Ochoa COA 31,243 06/06/14No. 34,764 State v. Slade COA 32,681 08/01/14No. 34,789 Tran v. Bennett COA 32,677 08/01/14No. 34,769 State v. Baca COA 32,553 08/01/14No. 34,786 State v. Baca COA 32,523 08/01/14No. 34,784 Silva v. Lovelace Health

Systems, Inc. COA 31,723 08/01/14No. 34,805 King v.

Behavioral Home Care COA 31,682 08/15/14No. 34,798 State v. Maestas COA 31,666 08/15/14No. 34,843 State v. Lovato COA 32,361 08/29/14No. 34,834 SF Pacific Trust v.

City of Albuquerque COA 30,930 08/29/14No. 34,772 City of Eunice v. N.M. Taxation

and Revenue Dept. COA 32,955 08/29/14No. 34,726 Deutsche Bank v. Johnson COA 31,503 08/29/14

Certiorari Granted and Submitted to the Court:

(Submission Date = date of oralargument or briefs-only submission) Submission DateNo. 33,632 First Baptist Church of Roswell v.

Yates Petroleum COA 30,359 03/13/13No. 33,548 State v. Marquez COA 30,565 04/15/13No. 33,971 State v. Newman COA 31,333 07/24/13No. 33,808 State v. Nanco COA 30,788 08/14/13No. 33,862 State v. Gerardo P. COA 31,250 08/14/13No. 33,770 Vaughn v.

St. Vincent Hospital COA 30,395 08/26/13

No. 33,969 Safeway, Inc. v. Rooter 2000 Plumbing COA 30,196 08/28/13

No. 33,898 Bargman v. Skilled Healthcare Group, Inc. COA 31,088 09/11/13

No. 33,884 Acosta v. Shell Western Exploration and Production, Inc. COA 29,502 10/28/13

No. 34,013 Foy v. Austin Capital COA 31,421 11/14/13No. 34,085 Badilla v. Walmart COA 31,162 12/04/13No. 34,146 Madrid v.

Brinker Restaurant COA 31,244 12/09/13No. 34,128 Benavides v.

Eastern N.M. Medical COA 32,450 12/18/13No. 34,093 Cordova v. Cline COA 30,546 01/15/14No. 34,194/34,204

King v. Faber COA 34,116/31,446 02/24/14No. 33,999 State v. Antonio T. COA 30,827 02/26/14No. 33,997 State v. Antonio T. COA 30,827 02/26/14No. 34,287 Hamaatsa v.

Pueblo of San Felipe COA 31,297 03/26/14No. 34,120 State v. Baca COA 31,442 03/26/14No. 34,583 State v. Djamila B. COA 32,333 07/29/14No. 34,122 State v. Steven B. consol. w/

State v. Begaye COA 31,265/32,136 08/11/14No. 34,286 Yedidag v.

Roswell Clinic Corp. COA 31,653 08/11/14No. 34,499 Perez v. N.M. Workforce

Solutions Dept. COA 32,321/32,330 08/13/14No. 34,546 N.M. Dept. Workforce Solutions v.

Garduno COA 32,026 08/13/14No. 34,271 State v. Silvas COA 30,917 08/25/14No. 34,365 Potter v. Pierce COA 31,595 08/25/14No. 34,435 State v. Strauch COA 32,425 08/27/14No. 34,447 Loya v. Gutierrez COA 32,405 08/27/14No. 34,295 Dominguez v. State 12-501 09/24/14No. 34,300 Behrens v. Gateway COA 31,439 09/29/14No. 34,501 Snow v. Warren Power COA 32,335 10/01/14No. 34,455 City of Santa Fe v.

Tomada COA 32,407 10/14/14

Petition for Writ of Certiorari Denied:

Date Order FiledNo. 34,853 State v. Quintana COA 33,306 09/11/14No. 34,851 State v. McClintock COA 31,425 09/11/14No. 34,848 Polk v. Aubrey COA 32,297/32,427 09/11/14No. 34,807 Hernandez v. Ortiz 12-501 09/10/14No. 34,604 Lopez v. State 12-501 09/10/14


OpinionsAs Updated by the Clerk of the New Mexico Court of Appeals

Wendy F. Jones, Chief Clerk New Mexico Court of Appeals PO Box 2008 • Santa Fe, NM 87504-2008 • (505) 827-4925


Slip Opinions for Published Opinions may be read on the Court’s website:http://coa.nmcourts.gov/documents/index.htm

Published Opinions

No. 32774 11th Jud Dist San Juan CR-12-503, STATE v C ALLEN (affirm) 9/8/2014No. 31890 2nd Jud Dist Bernalillo LR-11-18, STATE v R BELL (reverse) 9/9/2014No. 32542 1st Jud Dist Santa Fe CV-05-1424, J FREEMAN v P FAIRCHILD (affirm in part, reverse in part) 9/10/2014

Unublished Opinions

No. 33642 2nd Jud Dist Bernalillo JQ-11-114, CYFD v JACQUELINE M (affirm) 9/8/2014No. 33720 2nd Jud Dist Bernalillo JQ-12-85, CYFD v MONICA G (affirm) 9/8/2014No. 33768 11th Jud Dist McKinley LR-12-25, STATE v B NEZ (affirm) 9/8/2014 No. 32731 1st Jud Dist Santa Fe CV-10-1766, MABRY CONSTRUCTION v LAS CAMPANAS (reverse and remand) 9/8/2014No. 33477 5th Jud Dist Eddy LR-13-8, CITY OF ARTESIA v R THOMAS (affirm) 9/9/2014No. 33530 2nd Jud Dist Bernalillo LR-11-58, STATE v M MARTINEZ (affirm) 9/9/2014No. 33567 5th Jud Dist Lea CR-13-317, STATE v M HARDY (reverse and remand) 9/9/2014No. 33600 5th Jud Dist Chaves CR-12-35, STATE v D PORRAS (affirm) 9/9/2014No. 31741 5th Jud Dist Eddy CR-11-16, STATE v L LUEVANO (affirm) 9/9/2014No. 33703 13th Jud Dist Cibola CV-12-124, F DOMBOS v R STEWART (affirm in part, reverse in part) 9/11/2014

http://coa.nmcourts.gov/documents/index.htm


Clerk’s CertificatesFrom the Clerk of the New Mexico Supreme CourtJoey D. Moya, Chief Clerk New Mexico Supreme Court

PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860

Dated August 25, 2014

Clerk’s Certificate of Address and/or

Telephone Changes

Jennifer Sheridan BakerFredericks Peebles & Morgan LLP1900 Plaza DriveLouisville, CO 80027303-673-9600303-673-9155 (fax)[email protected]

Mark S. BarronBaker & Hostetler LLP1801 California Street, Suite 4400Denver, CO 80202303-764-4023303-861-7805 (fax)[email protected]

Robert Myles BaskervillePO Box 4130112 Edith Blvd. NE (87102)Albuquerque, NM 87196-4130505-967-8698505-268-3939 (fax)[email protected]

Miles Leachman BuckinghamNemirow Perez PC445 Union Blvd., Suite 209Lakewood, CO 80228720-638-1234mbuckingham@ nemirowperez.com

Marisela Inez ChavezArchibeque Law Firm, LLCPO Box 948376709 Academy Road NE, Suite B (87109)Albuquerque, NM 87199-4837505-750-2363505-792-6084 (fax)[email protected]

Taina L. ColonLaw Office of Taina L. ColonPO Box 35985Albuquerque, NM [email protected]

Kendrick Winsor DaneThe Dane Law Firm, PC1803 Rio Grande Blvd. NWAlbuquerque, NM 87104505-501-7558505-501-7556 (fax)[email protected]

Amber FayerbergFreedman Boyd Hollander Goldberg Urias & Ward PA20 First Plaza NW, Suite 700Albuquerque, NM 87102505-842-9960505-842-0761 (fax)[email protected]

Darin Foster400 Goodnight TrailJustin, TX [email protected]

Hon. Nancy Jean FranchiniSecond Judicial District CourtPO Box 488400 Lomas Blvd. NW (87102)Albuquerque, NM 87103-0488505-841-7522505-841-5456 (fax)

Desiree D. GuruleBrown Law Firm, Brown & Gurule, LLC3777 The American Rd. NW, Suite 100Albuquerque, NM 87114505-292-9677505-292-9680 (fax)[email protected]

Paul John Kennedy ([email protected])Nanette E. Erdman ([email protected])Justine C. Fox-Young ([email protected])Arne Robert Leonard ([email protected])Paul Kennedy & Associates, PC201 Twelfth Street NWAlbuquerque, NM 87102505-842-8662505-842-0653 (fax)

Steven J. LuceroMcCarthy Holthus LLP6501 Eagle Rock Ave. NE, Suite A-3Albuquerque, NM 87113877-369-6122 Ext. [email protected]

Lindsay Ann McDonell-BenatarLaw Offices of the Public Defender506 S. Main Street, Suite 700Las Cruces, NM 88001575-541-3193575-524-6765 (fax)[email protected]

Anne Elizabeth Illanes MeyersRiley, Shane & Keller, PA3880 Osuna Road NEAlbuquerque, NM [email protected]

Scott L. MullinsOregon Division of Finance and Corporate SecuritiesDFCS 350 Winter Street NESalem, OR 97301-3881503-947-7017

Amy L. OrlandoN.M. Department of Public SafetyPO Box 16284491 Cerrillos Road (87507)Santa Fe, NM 87504-1628505-827-9036505-827-3387 (fax)[email protected]

Alexander K. RussellPO Box 961215Boston, MA 02196-1215

Allison Ann Sipes2327 McNutt Road, Suite BSunland Park, NM [email protected]

Scott SweeneyWilson Elser Moskowitz Edelman & Dicker LLP1225 Seventeenth Street, Suite 2750Denver, CO 80202303-572-5300303-572-5301 (fax)[email protected]

Bryan W. ThomasonThomason Law Firm, PC111 Lomas Blvd. NW, Suite 502Albuquerque, NM [email protected]

Pranava UpadrashtaNew Mexico Court of AppealsPO Box 2008237 Don Gaspar Ave. (87501)Santa Fe, NM 87504-2008505-827-4833505-827-4946 (fax)[email protected]

Scott WisniewskiLaw Offices of the Public Defender505 Marquette Avenue NW, Suite 120Albuquerque, NM [email protected]

William ZarrOffice of the City AttorneyPO Box 1838425 N. Richardson Avenue (88201)Roswell, NM 88202-1838575-637-6220575-624-6709 (fax)[email protected]

Joanna Braswell ZimmermanCenter of Protective Environment909 S. Florida AvenueAlamogordo, NM [email protected]



























Clerk’s Certificates http://nmsupremecourt.nmcourts.gov.

Dated September 3, 2014

Clerk’s Certificate of Address and/or

Telephone Changes

Jennifer Rebecca AlbrightOffice of the Presiding Disciplinary Judge2048 E. La Jolla DriveTempe, AZ 85282

Hon. Jennifer L. AttrepFirst Judicial District CourtPO Box 2268225 Montezuma Avenue (87501)Santa Fe, NM 87504-2268

Melanie Pam Baise4725 Trumbull Avenue SEAlbuquerque, NM [email protected]

Adam S. BakerBaker Law Office, LLCPO Box 784Santa Fe, NM [email protected]

Robert J. BlanchOffice of the Thirteenth Judicial District AttorneyPO Box 637515 W. High StreetGrants, NM 87020-0637505-285-4627505-285-4629 (fax)[email protected]

Shelby Lynne CarlsonPO Box 137164Fort Worth, TX [email protected]

Joshua CarpenterCarpenter & Associates, PC9202 San Mateo Blvd. NEAlbuquerque, NM 87113505-243-0065505-243-0067 (fax)[email protected]

David S. Cohen2000 S. Ocean Blvd., Apt. 11KBoca Raton, FL [email protected]

Jane C. Cohen2000 S. Ocean Blvd., Apt. 11KBoca Raton, FL [email protected]

Julia Elizabeth Crooks7327 Hawthorn Avenue NEAlbuquerque, NM [email protected]

David L. DotsonDotson Law OfficesPO Box 115Socorro, NM [email protected]

Christina R. EvolaSupreme Court of Guam120 W. O’Brien Drive, Suite 300Hagatna, GU 96910671-475-3395671-475-3140 (fax)[email protected]

Alexander F. Flores9617 Gutierrez Road NEAlbuquerque, NM [email protected]

Suzanne Gaulin801 Douglas Avenue, Suite 6Las Vegas, NM 87701505-235-9556505-425-9704 (fax)[email protected]

Catherine Mary Gleeson1655 Humboldt Street, #104Denver, CO [email protected]

Jesse D. HaleBudagher & Associates3500 Comanche Road NE, Bldg. BAlbuquerque, NM 87107505-881-9060505-881-7003 (fax)[email protected]

Eric Reed Hall8900 Washington Street. NE, Suite AAlbuquerque, NM 87113505-908-3938505-247-9761 (fax)[email protected]

Konstantina Manjoros KatchevesLonza Group8830 Biggs Ford RoadWalkersville, MD [email protected]

Keya KoulBrown Law Firm, Brown & Gurule, LLC3777 The American Rd. NW, Suite 100Albuquerque, NM 87114505-292-9677505-292-9680 (fax)[email protected] Hon. Albert B. LassenCity of South Tucson1601 S. Sixth AvenueSouth Tucson, AZ 85713520-917-1568520-623-5001 (fax)[email protected]

Taylor M. LuerasLaw Offices of the Public Defender505 Marquette Avenue NW, Suite 120Albuquerque, NM 87102505-369-3583505-841-5006 (fax)[email protected]

Deidre A. Lujan ([email protected])Thomas J. Peckham ([email protected])Alan R. Taradash ([email protected])Nordhaus Law Firm, LLP7411 Jefferson Street NEAlbuquerque, NM 87109505-243-4275505-243-4464 (fax)

Daniel J. Macke3777 The American Rd. NW, Suite 100Albuquerque, NM 87114505-292-9677505-292-9680 (fax)[email protected] Antonio MaestasMoeJustice Law OfficePO Box 7307Albuquerque, NM [email protected]

Tania MaestasN.M. Regulation and Licensing Dept.PO Box 251012550 Cerrillos Road (87505)Santa Fe, NM 87504-5101505-476-4663505-476-4511 (fax)[email protected]

Sharon A. MarinuzziThe Trinity Law Firm557 Oppenheimer Drive, Suite 101Los Alamos, NM [email protected]

J. Henry MessingerJ. Henry Messinger, PC809 Branding Iron Drive SEAlbuquerque, NM [email protected]

Eric MorrowThe Law Offices of Morrow and Pettus2411 E. 20th StreetFarmington, NM 87401505-327-7121505-325-6127 (fax)[email protected]

J. R. MuellerLaw Offices of Jay R. Mueller & Associates500 Marquette Avenue NW, Suite 1200Albuquerque, NM [email protected]

http://nmsupremecourt.nmcourts.gov





























Clerk’s Certificates http://nmsupremecourt.nmcourts.gov.

Aja OishiLaw Offices of the Public Defender301 N. Guadalupe Street, Suite 101Santa Fe, NM [email protected]

Monica M. OntiverosPO Box 22131Santa Fe, NM 87502-2131505-603-2255505-424-0779 (fax)[email protected]

James B. Payne1553 Gumwood AvenueTaylorsville, UT [email protected]

Barrett George PorterLaw Offices of the Public Defender505 Marquette Avenue NW, Suite 1000Albuquerque, NM [email protected]

Charles A. PurdyBooth & Purdy, Attorneys1223 S. St. Francis Drive, Suite CSanta Fe, NM 87505505-984-2999505-212-0592 (fax)[email protected]

Joseph M. RomeroPO Box 275791001 Fifth Street NW (87102)Albuquerque, NM 87125-7579505-433-1642505-214-5774 (fax)[email protected]

Rheba RutkowskiU.S. Court of Appeals for the Tenth Circuit201 Third Street NWAlbuquerque, NM 87102505-843-6196505-843-6202

D.L. SandersD L Sanders, LLC17 Seton PlazaSanta Fe, NM [email protected]

Richard ShapiroPO Box 32361Santa Fe, NM 87594-2361505-989-8869505-982-6122 (fax)[email protected]

Scott D. Spencer223 N. Guadalupe Street, #543Santa Fe, NM 87501

John StretcherLegacy Reserves Operating LP2512 Storey AvenueMidland, TX [email protected]

Blake Alan WhitcombOffice of the City AttorneyPO Box 909200 Lincoln Avenue (87501)Santa Fe, NM 87504-0909505-955-2976505-955-6748 (fax)[email protected]

Samuel C. WolfJones, Snead, Wertheim & Clifford, PAPO Box 22281800 Old Pecos Trail (87505)Santa Fe, NM 87504-2228505-982-0011505-989-6288 (fax)

Janice K. WoodsRoscoe A. Woods & AssociatesPO Box 1415102 Plaza StreetSocorro, NM 87801-1415866-440-2380866-440-2380 (fax)janicewoods@ woods-woodslawfirm.com

Andrew P. YarringtonMcCarthy & Holthus, LLP6501 Eagle Rock Ave. NE, Suite A-3Albuquerque, NM 87113877-369-6122 Ext. 1596ayarrington@ mccarthyholthus.com

Clerk’s Certificate of Withdrawal

Effective August 26, 2014:Mildred Bauza55 West Main Street, Suite 110Waterbury, CT 06702

Effective September 2, 2014:Sangeeta Prasad725 Oak Springs RoadBryn Mawr, Pennsylvania 10910

Effective August 26, 2014:Harold G. Weinberg2721 S. Norfolk Street, Suite 207San Mateo, CA94403

In Memoriam

As of July 26, 2014:Thomas Joseph HornePO Box 8095Albuquerque, NM 87198-8095

Clerk’s Certificate of Name, Address, and/or Telephone

Changes

Effective August 29, 2014:Carol A. CliffordElizabeth C. CliffordRoxie P. Rawls-De SantiagoJames E. Snead IIIJerry WertheimJerry Todd WertheimJohn V. WertheimSamuel C. WolfThe firm name, address, and telephone number are as follows:Jones, Snead, Wertheim & Clifford, PAPO Box 22281800 Old Pecos Trail (87505)Santa Fe, NM 87504-2228505-982-0011505-989-6288 (fax)

Clerk’s Certificate of Name Change

As of August 29, 2014Rachel A. Mendoza-Newton f/k/a Rachel Anne Mendoza-NewtonRussell Immigration Law Firm, LLC1012 S. Fourth StreetLouisville, KY [email protected]

As of September 3, 2014Alexis Rollinger f/k/a Alexis Carver7919 Cutler Avenue NEAlbuquerque, NM [email protected]

Clerk’s Certificate of Change to

Inactive Status

Effective August 27, 2014:Julia C. Roberts3012 Hyder Avenue SEAlbuquerque, NM 87106















Joey D. Moya, Chief Clerk New Mexico Supreme Court PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860

Recent Rule-Making ActivityAs Updated by the Clerk of the New Mexico Supreme Court


Pending Proposed Rule Changes Open for Comment:

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Recently Approved Rule Changes Since Release of 2014 NMRA:

Effective Date

Children’s Court Rules and Forms

10-102 Commencement of action. 08/31/1410-315 Custody hearing. 07/01/1410-317 Notice of change in placement. 08/31/1410-323 Dismissal of a respondent or child;

party dismissal sheet. 08/31/1410-343 Adjudicatory hearing; time limits;

continuances. 07/01/1410-501A Abuse and neglect party information sheet. 08/31/1410-565 Advance notice of change of placement. 08/31/1410-566 Emergency notice of change of placement. 08/31/1410-567 Abuse and neglect party dismissal sheet. 08/31/14

Rules of Appellate Procedure12-206A Expedited appeals from Children’s Court

custody hearings. 07/01/1412-303 Appointment of counsel. 07/01/14

Rules Governing Admission to the Bar15 102 Admission requirements. 06/01/1515 103 Qualifications. 06/01/1515 105 Application fees. 06/01/1515 107 Admission by motion. 06/01/15

Supreme Court General Rules23-109 Chief judges. 04/23/14

To view all pending proposed rule changes (comment period open or closed), visit the New Mexico Supreme Court’s website at http://nmsupremecourt.nmcourts.gov.

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Advance Opinions http://www.nmcompcomm.us/

From the New Mexico Supreme Court and Court of Appeals

From the New Mexico Supreme Court

Opinion Number: 2014-NMSC-027

AGALELEI KIMBRELL, also known as LILY KIMBRELL, by and through her next friend and parent W. DAVID KIMBRELL,

Plaintiff-Respondent,v.

LORRAINE KIMBRELL and KATHRIN KINZER-ELLINGTON,Defendants-Petitioners

No. 34,150 (filed June 23, 2014)

ORIGINAL PROCEEDING ON CERTIORARIBARBARA J. VIGIL and SARAH M. SINGLETON, District Judges

COURTENAY LEE KELLERTIFFANY L. SANCHEZ

RILEY, SHANE & KELLER, P.A.Albuquerque, New Mexico

for Petitioner Kathrin Kinzer-Ellington

MICHAEL H. SCHWARZSanta Fe, New Mexico

for Petitioner Lorraine Kimbrell

GARY W. BOYLESanta Fe, New Mexico

for Respondent

JAMES E. BRISTOL, IIIBRISTOL FAMILY LAW, L.L.C.

Santa Fe, New Mexico

TIFFANY OLIVER LEIGHLITTLE, GILMAN-TEPPER, BATLEY

& LEIGH, P.A.Albuquerque, New Mexico

LINDA HELEN BENNETTL. HELEN BENNETT, P.C.

Albuquerque, New Mexicofor Amicus Curiae the

Family Law Section of the State Bar of New Mexico

PETER HENRY KLAGESAlbuquerque, New Mexico

F. MICHAEL HARTMARTINEZ, HART & THOMPSON, P.C.

Albuquerque, New Mexicofor Amicus Curiae Pegasus Legal

Services for Children

Opinion

Edward L. Chávez, Justice1 Petitioner Kathrin M. Kinzer-Elling-ton (Kinzer-Ellington) was appointed guardian ad litem pursuant to Rule 1-053.3 NMRA to serve as an arm of the court in determining the best interests of minor children whose parents were involved in a custody dispute. Kimbrell v. Kimbrell, 2013-NMCA-070, ¶ 2, 306 P.3d 495, cert. granted, 2013-NMCERT-006. As the case grew more and more conten-tious, W. David Kimbrell (Father) sued both Lorraine Kimbrell (Mother) and the guardian ad litem in tort as next friend of his oldest daughter, Lily Kimbrell (Lily),

alleging that their conduct had injured the child. Id. ¶ 3. We granted certiorari to determine whether a parent has standing to sue a Rule 1-053.3 guardian ad litem during a pending custody proceeding. Intertwined with this question is whether a Rule 1-053.3 guardian ad litem is abso-lutely immune from suit arising from the performance of his or her duty—a ques-tion we answer first.2 We hold that a Rule 1-053.3 guardian ad litem is protected by absolute quasi-judicial immunity from suit arising from the performance of his or her duties unless the guardian ad litem’s alleged tortious conduct is clearly and completely outside the scope of his or her appointment. The custody court that appointed the guard-

ian ad litem is the appropriate court to determine whether the guardian ad litem’s alleged misconduct arose from acts clearly and completely outside the scope of the appointment and, if so, the custody court should appoint a guardian ad litem, other than a parent, pursuant to Rule 1-017(C) NMRA to represent the child in any necessary litigation. A parent does not have standing to sue a guardian ad litem appointed in a custody proceeding on behalf of the child because (1) the parent has been found to be unable to act in the best interests of the child, and (2) such a lawsuit would create a conflict of interest in the custody case.BACKGROUND3 The long and contentious history of this domestic relations case is well documented in the Court of Appeals’ opinion. Kimbrell, 2013-NMCA-070, ¶¶ 2-8. We do not need to repeat all of the details of the disputatious history because the degree of contentious-ness is not relevant to the issues before us. Only the details of the appointment of the guardian ad litem and of the lawsuit against the guardian ad litem are relevant.4 Kinzer-Ellington was appointed guardian ad litem pursuant to NMSA 1978, Section 40-4-8 (1993) to assist the parties and the district court in determin-ing the best interests of the Kimbrells’ four minor children. Soon after Kinzer-Ellington issued her first report and rec-ommendations, the district court entered a stipulated order regarding child custody and periods of responsibility that adopted most of Kinzer-Ellington’s recommenda-tions and discharged her from further service. However, Kinzer-Ellington was reappointed pursuant to Rule 1-053.3 after problems continued between Father and Mother. The district court specified her role and made clear that she served as an arm of the court pursuant to Rule 1-053.3.5 Following Kinzer-Ellington’s reap-pointment, Father refused to permit her to speak with Lily; insisted on being present during meetings between Kinzer-Ellington and the children or to have those meet-ings recorded; refused to execute autho-rizations for the release of information regarding the children; filed five different motions to have Kinzer-Ellington removed as guardian ad litem, all of which were denied; filed two disciplinary complaints against Kinzer-Ellington, both of which were dismissed for lack of merit; sued Kinzer-Ellington and others in federal

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http://www.nmcompcomm.us/Advance Opinionscourt; and also sued Kinzer-Ellington and Mother in state court, alleging tortious conduct. After one of Father’s motions to remove Kinzer-Ellington as the guardian ad litem, the district court, apparently ex-asperated, entered the following findings in denying the motion:

3. David Kimbrell’s January 8, 2010 Motion to Replace Guard-ian ad Litem continues to try to attack the guardian ad litem’s ability to provide independent representation of the parties’ children. . . .5. The guardian ad litem has maintained an objective view of this case and remains objective in exercising her role in this case. 6. David Kimbrell inappropri-ately views the guardian ad litem as an opponent in this matter.7. David Kimbrell’s continuing attacks on the guardian ad litem are becoming problematic to the administration of justice.8. David Kimbrell’s continuing attacks on the guardian ad litem have become unfair and abusive.

6 The issue before us arises from the state court tort litigation. In that case, Father sued Mother as next friend and parent of Lily, and later amended his complaint to include Kinzer-Ellington as a co-defendant. Father alleged that Kinzer-Ellington breached her fiduciary duty to Lily; invaded Lily’s privacy; committed prima facie tort; and caused intentional infliction of emotional distress by, among other things, blocking contact between Lily and her siblings.7 Both Kinzer-Ellington and Mother filed motions to dismiss the tort action. The district court took judicial notice of the voluminous family court file and the fact that Kinzer-Ellington was appointed guardian ad litem under Rule 1-053.3 “due to the inability of either parent to remain objective and agree on what is in the best interests of the child.” The district court also found that Father “does not possess the necessary objectivity to make decisions concerning the best interests of the child including whether a tort suit should be brought on behalf of the child against the

child’s mother and/or the guardian ad li-tem.” The district court concluded that the best interests of the child and the appoint-ment of the guardian ad litem pursuant to Section 40-4-8 and Rule 1-053.3 “deprive the child’s parents of standing to bring a tort suit on behalf of the child against the other parent and/or the guardian ad litem.” The district court noted that the remedy for improper conduct on the part of the guardian ad litem is removal in the underlying domestic relations proceeding. The district court dismissed Father’s tort case with prejudice.8 On appeal, the Court of Appeals reversed the district court, holding that “[u]nder our law as it exists today, parents retain standing to sue their child’s guard-ian on behalf of their child, subject to the guardian’s limited immunity as an arm of the court. We thus conclude that Father has standing to assert the tort cause of action in this case.” Kimbrell, 2013-NMCA-070, ¶ 19. With respect to immunity, the Court of Appeals acknowledged that a guardian ad litem who acts as an arm of the court enjoys absolute immunity for conduct within the scope of the appointment. Id. ¶ 21. However, pursuant to Collins ex rel. Collins v. Tabet, 1991-NMSC-013, ¶ 10, 111 N.M. 391, 806 P.2d 40, the Court of Appeals employed a functional approach to each of Father’s contentions to deter-mine whether Kinzer-Ellington allegedly exceeded the scope of her appointment, and held that with one exception—al-leged interference with communications between siblings—the alleged conduct fell within the scope of Kinzer-Ellington’s appointment, entitling her to immunity. Kimbrell, 2013-NMCA-070, ¶¶ 21, 31. This Court granted Kinzer-Ellington’s petition for writ of certiorari.1 We now reverse the Court of Appeals and affirm the district court’s summary judgment in favor of Kinzer-Ellington. We first discuss the issue of immunity and then the issue of standing.STANDARD OF REVIEW9 The Court of Appeals reviewed the district court’s order as an order granting summary judgment. Id. ¶ 10. The Court of Appeals determined that Kinzer-Ellington’s motion to dismiss Father’s tort lawsuit for lack of standing was converted

into a motion for summary judgment because the district court took judicial notice of matters in the underlying divorce and custody proceedings and considered pleadings from those proceedings attached to Kinzer-Ellington’s motion to dismiss. Id. ¶ 9. Orders granting summary judgment are reviewed de novo. Romero v. Philip Morris Inc., 2010-NMSC-035, ¶ 7, 148 N.M. 713, 242 P.3d 280. Whether a party has standing to sue is a question of law, which is also reviewed de novo. See San Juan Agric. Water Users Ass’n v. KNME-TV, 2011-NMSC-011, ¶ 8, 150 N.M. 64, 257 P.3d 884.DISCUSSION10 In 2006, this Court adopted a rule to define the duties of a guardian ad litem to serve in custody disputes. Rule 1-053.3 (adopted 2006, amended 2007). A Rule 1-053.3 guardian ad litem is a “ ‘best inter-ests attorney’ ” who provides independent services without being bound by the child’s or another party’s directives or objectives and who must make findings and recom-mendations to the court regarding the best interests of the child. Rule 1-053.3(C).A Rule 1-053.3 guardian ad litem has absolute quasi-judicial immunity from suit arising from the performance of his or her duties11 In Collins, we held that a guardian ad litem acting as an arm of the “court is absolutely immune from liability for his or her actions taken [within the scope of] the appointment.” 1991-NMSC-013, ¶ 14. The rationale for granting absolute immunity is to prevent the guardian ad litem’s work from being compromised by the threat of liability, which in turn could impair the judge’s own performance. Id. ¶ 26.12 In Collins, one example we gave of a guardian ad litem entitled to absolute immunity was a guardian ad litem whose responsibility was to conduct a factual investigation and make recommendations to the court regarding the placement of a child consistent with the best interests of the child. Id. ¶ 22 (citing Ward v. San Diego Cnty. Dep’t of Soc. Servs., 691 F. Supp. 238, 240 (S.D. Cal. 1988)). In Ward, the guard-ian ad litem was given access to all of the child’s records, and was notified of and authorized to attend all conferences and hearings regarding the child in order to

1 Lily reached the age of majority before we granted certiorari. Lily argued that the issue regarding her parents’ standing to sue on her behalf is now moot. Regardless, we believe that the issues in this case are capable of repetition and are matters of substantial public interest. We therefore proceed to decide the merits of this case. See Gunaji v. Macias, 2001-NMSC-028, ¶ 10, 130 N.M. 734, 31 P.3d 1008 (holding that “this Court may review moot cases that present issues of substantial public interest or which are capable of repetition yet evade review”).



http://www.nmcompcomm.us/Advance Opinionscarry out her responsibilities. 691 F. Supp. at 240. When the father sued the guardian ad litem, alleging that she acted outside the scope of her appointment, the Ward court granted summary judgment to the guard-ian ad litem, holding that she had absolute quasi-judicial immunity from liability. Id. at 241. The rationale of the Ward court was three-fold. See id. at 240-41. First, the guardian ad litem was acting as an arm of the court. Id. at 240. Second, the threat of civil liability could impair the guardian ad litem’s ability to independently investigate and report the facts to the court, thereby obstructing the pathway to ascertaining the truth and impairing the judge’s abil-ity to perform his or her judicial duties. Id. Third, procedural safeguards—the guardian ad litem serves at the discretion of the court, the court is not bound by the guardian’s recommendations, and the par-ents may appeal—are available to protect against misconduct, making the threat of civil litigation unnecessary. Id. at 240-41. The guardian ad litem in Ward would not have enjoyed absolute quasi-judicial immunity had her actions been clearly and completely outside the scope of her appointment. Id. at 240 n.1.13 We find the analysis in Ward persua-sive with respect to guardians ad litem who are appointed pursuant to Section 40-4-8 and Rule 1-053.3. Like the guardian ad litem in Ward, a Rule 1-053.3 guardian ad litem “serves as an arm of the court and assists the court in discharging its duty to adjudicate the child’s best interests,” Rule 1-053.3(A), and “shall provide indepen-dent services to protect the child’s best in-terests without being bound by the child’s or either party’s directive or objectives and who shall make findings and recommen-dations.” Rule 1-053.3(C). The guardian ad litem is authorized to interview the parents, the children outside the presence of the parents, the child’s therapists, and other witnesses at the guardian ad litem’s discretion, and is also given access to rel-evant records. Rule 1-053.3(F)(1).14 The function of Rule 1-053.3 guard-ians ad litem is without question to act as an arm of the court, and they are therefore entitled to absolute quasi-judicial immu-nity from liability for the performance of their duties. In addition to concerns about intimidation tactics or the fear of being sued by a disgruntled parent, there are procedural safeguards available in New Mexico that make the threat of litigation an unnecessary check on the conduct of a Rule 1-053.3 guardian ad litem, such as the

guardian ad litem’s service at the discretion of the court, Rule 1-053.3(A) (a court may appoint a guardian ad litem); the court’s ability to limit the role of the guardian ad litem, Rule 1-053.3(B); and the parties’ abil-ity to object to the recommendations of the guardian ad litem, Rule 1-053.3(G)(2).15 In addition, like the Ward court, we conclude that absolute quasi-judicial immunity does not protect a Rule 1-053.3 guardian ad litem who acts clearly and completely outside the scope of his or her appointment. What actions may constitute a clear and complete departure from the scope of appointment are too difficult to predict. An obvious example discussed during oral argument arises when the guardian ad litem negligently operates a motor vehicle, legally causing injury to a child. However, where the conduct in question is related to communications between the guardian ad litem and the children, parents, therapists, other wit-nesses, or the gathering of information for the purpose of making recommendations to the court, then the conduct is not clearly and completely outside the scope of the appointment and the guardian ad litem is protected by absolute immunity.16 The Court of Appeals employed the functional analysis announced by the Collins court to determine whether each alleged act of misconduct by Kinzer-Ellington was done within the scope of her appointment. See Kimbrell, 2013-NMCA-070, ¶¶ 21, 28. In a functional analysis, “a limited factual inquiry is necessary to determine the nature of [the guardian ad litem’s] appointment and the extent to which he [or she] functioned within the scope of that appointment.” Collins, 1991-NMSC-013, ¶ 42.17 The Collins court applied a func-tional analysis because it was not clear from the record whether the guardian ad litem was appointed as an arm of the court or as a conflict lawyer/guardian ad litem to evaluate a settlement involving a minor. Id. ¶¶ 27, 29, 44. When a guardian ad litem is appointed pursuant to Rule 1-053.3, it is very clear that the guardian ad litem is an arm of the court. The appointing court is in the best position to determine whether the guardian ad litem has clearly and completely acted outside the scope of his or her appointment. Therefore, a parent concerned about potential misconduct by the guardian ad litem must bring the matter to the attention of the appointing court, which is also the custody court. The appointing court shall exercise discretion

in conducting whatever hearing it deems necessary to decide whether sufficient evidence exists to support a good faith alle-gation that the guardian ad litem exceeded the scope of his or her appointment. If such evidence does exist, the court may take whatever action it deems necessary regard-ing the guardian ad litem by, for example, limiting his or her duties or removing him or her from service. In addition, if the court finds evidence sufficient to support a good faith basis that the guardian ad litem clearly and completely acted outside the scope of his or her appointment and may have caused injury to a child, the court shall appoint a different guardian ad litem to act as an attorney for the child pursuant to Rule 1-017(C) to pursue whatever ac-tion he or she deems necessary. Although this approach deviates from the approach taken by the Collins court, the approach we announce today is consistent with the best interests of children involved in custody disputes and with the procedures and confidentiality requirements of Rule 1-053.3.A parent in a custody dispute does not have standing to sue, on behalf of a child, a Rule 1-053.3 guardian ad litem who does not have absolute immunity18 Our resolution of the immunity question leaves the potential for a Rule 1-053.3 guardian ad litem to be sued. The question that remains is whether a parent in a pending custody case may sue the guardian ad litem on behalf of a child. We hold that a parent does not have standing to bring such a lawsuit because the custody court has already determined that the parent is incapable of acting in the best interests of the child. In addition, to allow the parent to sue the guardian ad litem cre-ates a conflict of interest and the potential for interference with the administration of justice in both the custody proceeding and the tort action. Even in the obvious example where a guardian ad litem neg-ligently operates a motor vehicle causing injury to the child, a parent who is allowed to sue on behalf of the child may not act in the best interest of the child regarding settlements or other important strategies just to spite or intimidate the guardian ad litem. For this reason, we have already indicated that in an appropriate case, the custody court should appoint a guardian ad litem for the child under Rule 1-017 to pursue any necessary litigation.19 Our holding is consistent with how other jurisdictions have approached the issue. See Bluntt v. O’Connor, 291 A.D.2d



http://www.nmcompcomm.us/Advance Opinions106, 113, 114 (N.Y. App. Div. 2002) (hold-ing that a mother lacked standing to bring a claim either on behalf of a child or indi-vidually against the guardian ad litem be-cause such a suit would interfere with the guardian ad litem appointment and create a conflict of interest); State ex rel. Bird v. Weinstock, 864 S.W.2d 376, 380 (Mo. Ct. App. 1993) (holding that appointment of a guardian ad litem in a custody case supersedes a parent’s natural guardianship in areas of a custody disputes as long as the appointment lasts). The Bird court set forth a detailed analysis of the standing issue:

the underlying suit is an inde-pendent tort action brought by Father on behalf of the children seeking to obtain injunctive relief and money damages. Neverthe-less, the factual allegations of the petition and the nature of the relief sought would appear to fall squarely within the areas of interest in the Juvenile Court proceeding in which Guardian was appointed. . . . Further, al-though Father does not expressly seek Mr. Bird’s removal as guard-ian ad litem as part of the relief requested in the underlying suit, the mere assertion of a claim for money damages against him by his clients could very well accom-plish the same result by posing an inherent conflict of interest. Removal of a guardian ad litem, however, is a matter vested in the sound discretion of the appoint-ing court, in this case the Juvenile Court for the City of St. Louis. . . .

Would suits and countersuits brought in the name of the chil-dren become the new weapon of choice in the arsenal of estranged couples? Thus, at least with respect to the claims asserted against Mother and Guardian, there is substantial reason to question Father’s standing to maintain the underlying suit.

Bird, 864 S.W.2d at 380-81 (emphasis added) (footnote omitted) (internal cita-tions omitted). The procedure we have outlined safeguards the best interests of the child, while preserving and protect-ing the important role of a Rule 1-053.3 guardian ad litem.The guardian ad litem in this case is absolutely immune from suit for the alleged tortious conduct because her conduct was not clearly and completely outside the scope of her appointment20 The Court of Appeals “reverse[d] the district court’s summary judgment solely with regard to claims involving the [guard-ian ad litem]’s alleged involvement with Mother in blocking [Lily]’s phone calls to her siblings.” Kimbrell, 2013-NMCA-070, ¶ 31. We have already held that the custody court is the appropriate court to determine whether the guardian ad litem’s alleged misconduct arose from acts clearly and completely outside the scope of her appointment.21 However, because of the protracted nature of this litigation and what we consider to be the adequacy of the record before us, we conclude that even if Kinzer-Ellington, together with Mother, blocked calls between siblings, such actions are not

clearly and completely outside the scope of her appointment. Guardians ad litem have the responsibility to interview a number of different participants in custody battles with the goal of ascertaining the truth. In this case, Kinzer-Ellington was ordered to interview the children outside the pres-ence of the parents and the attorneys. In such a contentious case, particularly given Father’s efforts to have the children make false reports of abuse against Mother, Kinzer-Ellington had the discretion to control the communications between the children until she completed her inves-tigation. As a result, Kinzer-Ellington is also absolutely immune from being sued for the alleged collusion with Mother in controlling the communications between siblings in this case.CONCLUSION22 The guardian ad litem cannot be sued for the alleged misconduct because her actions cannot be said to be clearly and completely outside the scope of her appointment. Therefore, absolute quasi-judicial immunity applies to the guardian ad litem in this case. The Court of Appeals is reversed and the district court’s summa-ry judgment in favor of Kinzer-Ellington is affirmed.23 IT IS SO ORDERED.

EDWARD L. CHÁVEZ, Justice

WE CONCUR:PETRA JIMENEZ MAES, JusticeRICHARD C. BOSSON, JusticeCHARLES W. DANIELS, JusticeCAMILLE MARTINEZ OLGUIN, JudgeSitting by designation



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Certiorari Denied, June 25, 2014, No. 34,761


Opinion Number: 2014-NMCA-078

BUKE, LLC,Plaintiff-Appellant,

v.CROSS COUNTRY AUTO SALES, LLC,

CROSS COUNTRY AUTO SALES WESTSIDE, LLC, SOUTHWEST AUTO WHOLESALE,

LLC, CAS, LLC, JOHN CHIADO, JOE CHIADO, JOHN T. REILLY, BEDO, LLC, JOHN PERNER, and PERNER AND MICHNOVICZ, LLC,

Defendants-AppelleesDocket No. 32,559 (filed April 23, 2014)

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTYTED BACA, District Judge

JOHN J. KELLYMICHELLE A. HERNANDEZ

KEVIN D. PIERCE MODRALL, SPERLING, ROEHL,

HARRIS & SISK, P.A.Albuquerque, New Mexico

for Appellant

JANE B. YOHALEMLAW OFFICE OF JANE B. YOHALEM

Santa Fe, New Mexico

CHRIS KEYLAW OFFICE OF CHRIS KEYAlbuquerque, New Mexico

for Appellees Cross Country Auto Sales, LLC; Cross Country Auto Sales

Westside, LLC; Southwest Auto Wholesale, LLC; CAS, LLC; John

Chiado; John T. Reilly, and BEDO, LLC

JOHN M. BRANTJEANNIE HUNT

LAW OFFICE OF JACK BRANT, P.C.Albuquerque, New Mexico

for Appellees John Perner and Perner and Michnovicz, LLC

Opinion

Linda M. Vanzi, Judge1 This lawsuit arises from a dispute concerning the use of certain assets of Plaintiff-Appellant BUKE, LLC (BUKE), a limited liability company (LLC) car deal-ership, by BUKE’s manager, Randall East-burg, who was also a member of BUKE and of Defendant LLC car dealerships. Rounding out the named Defendants are other members of Defendant LLC car dealerships, along with a certified public accountant (CPA) and his accounting firm.

2 The case involves many players, claims, and contentions, but resolution of the central issues raised in this appeal turns primarily on one disputed point—whether Eastburg had the requisite consent to use the assets in question. We conclude that the only reasonable conclusion to be drawn from the undisputed material facts is that he did, so we affirm the district court’s summary judgment rulings in fa-vor of Defendant LLC car dealerships and their members. We also affirm the district court’s entry of summary judgment dis-missing the accountant malpractice claim and its denial of BUKE’s motion to amend the scheduling order.

I. BACKGROUNDA. The Parties3 BUKE was formed in 2005 with the following members: Brian Urlacher (32.5%), Turner and Margaret Branch (20%), Bryce Karger (15%), and Randall and Lisa Eastburg (32.5%).1

4 Defendants fall into three groups: (1) Albuquerque used car dealerships Cross Country Auto Sales Eastside, LLC and Cross Country Auto Sales Westside, LLC, along with Albuquerque wholesale dealership Southwest Auto Wholesale, LLC (collectively, Cross Country LLCs); (2) Cross Country LLCs’ members: John T. Reilly and BEDO, LLC (BEDO), which consists of six members of the Chiado family, two of whom are also named Defendants (collectively, Cross Country Members)2; (3) John Perner, a CPA who provided services to BUKE and the Cross Country LLCs, and his accounting firm, Perner and Michnovicz (collectively, the Accountants).B. The Undisputed Material Facts1. Eastburg’s Relationships With the

Parties5 Eastburg was an experienced owner and operator of car dealerships, who oper-ated the Cross Country LLCs since 1998. Eastburg continued to be a member of the Cross Country LLCs and to operate those dealerships after he became involved with BUKE in 2005. All of BUKE’s members were aware of Eastburg’s involvement with the Cross Country LLCs.6 Eastburg was also a member and man-ager of a used car dealership in Lovington, New Mexico called “Brian Urlacher Cross Country Auto Sales LLC” (Lovington Dealership), in which Urlacher and Karger had an ownership interest. Turner Branch was the only BUKE member who did not hold a membership interest in the Loving-ton Dealership.2. Eastburg’s Management and Use of

Certain BUKE Assets7 BUKE selected Eastburg to be its sole manager at its inception in 2005, and Eastburg held that position until 2009. As discussed further below, BUKE’s operat-ing agreement (Operating Agreement) prohibited BUKE’s members from par-ticipating in “the control, management, direction or operation” of BUKE’s affairs and gave BUKE’s manager (Eastburg) “the exclusive right to manage all of ”

1 The parties do not mention Margaret Branch and Lisa Eastburg, other than to initially note the fact of their membership in BUKE. Accordingly, “Branch” refers to Turner Branch and “Eastburg” to Randall Eastburg. 2 Eastburg was also a member of the Cross Country LLCs. As discussed below, BUKE dismissed its claims against Eastburg.



http://www.nmcompcomm.us/Advance OpinionsBUKE’s affairs, subject to certain limita-tions.8 In 2006, BUKE bought the assets of a General Motors (GM) new car dealership in Tucumcari, New Mexico (Tucumcari Dealership) and named it “Brian Urlacher Cross Country Autoplex.” As a GM fran-chisee (via the Tucumcari Dealership), BUKE had access to GM “credentials,” also known as a “badge,” which allowed BUKE to purchase low-mileage GM vehicles at closed GM auctions (GM Badge). BUKE also had a General Motors Acceptance Corporation (GMAC) credit line (also known as a “floor plan”), which allowed BUKE to finance the vehicles it purchased at low interest rates (Credit Line). 9 Eastburg testified that access to the GM Badge and Credit Line was one of the reasons he wanted to become involved with the Tucumcari Dealership. The Tucumcari Dealership’s former owner was aware that Eastburg was going to use the GM Badge during the management contract period. Eastburg told Karger that he was going to use the GM Badge to purchase vehicles for the Cross Country LLCs, although he does not recall discussing use of the GM Badge or Credit Line for this purpose with Urlacher or Branch. Karger did not object, although some details of that conversation are disputed: Karger testified that, during their conversation, Eastburg promised that the Cross Country LLCs would pay BUKE $500 for each vehicle it purchased using the GM Badge, while Eastburg said that he does not remember making this promise and that he never would have made it because that amount would be excessive. The Cross Country LLCs never paid BUKE a per-vehicle fee.10 Once BUKE began operating the Tucumcari Dealership in 2006, Eastburg arranged with one of BUKE’s employees to obtain GM Badges for himself and others working for him to purchase vehicles at closed GM auctions. BUKE’s employees understood that Eastburg was authorized to do so. Thereafter, Eastburg used the GM Badges to purchase and sell vehicles for BUKE, the Lovington Dealership, and the Cross Country LLCs. Eastburg also arranged with BUKE’s employees for the Cross Country LLCs to reimburse BUKE for the vehicles that were purchased for them at GM auctions on the Credit Line. The Cross Country LLCs’ lender, New

Mexico Bank & Trust, was aware that Eastburg was purchasing vehicles for the Cross Country LLCs on BUKE’s Credit Line.11 Eastburg publicized that he was using the GM Badge and Credit Line to purchase vehicles for all of the dealerships he operated. For instance, in March 2007, Eastburg gave an interview for an article published in the New Mexico Business Weekly. That article discussed all of the dealerships Eastburg operated, referring to them collectively as “Cross Country” not-withstanding their different ownerships. It also stated that “[t]he GM Tucumcari deal is huge because it will give Eastburg access to all GM auto auctions, as well as to GM financing for his inventory of cars, both new and used.” BUKE posted the article on its website. Eastburg also spoke openly to Albuquerque newspapers about “moving inventory between the various stores with which [he] was affiliated[.]”3. Perner’s Determinations

Concerning the Credit Line12 Perner was not involved in BUKE’s day-to-day bookkeeping. However, in May 2008, Eastburg, on behalf of BUKE, hired Perner to perform two discrete accounting services for BUKE: prepare tax returns for 2006, 2007, and 2008; and prepare a Reviewed Financial Statement (RFS) for 2007. Perner had previously prepared tax returns for two of the Cross Country LLCs. Shortly after BUKE hired him as an accountant, Perner also became a member of a newly created business, Cross Country Auto Parts, LLC, whose other members were Eastburg, two Cross Country Mem-bers, and three other individuals.13 While preparing the RFS in May 2008, Perner determined that the Credit Line was “out of trust,” meaning that the amount BUKE owed GMAC exceeded the value of BUKE’s inventory on the car lot floor at the Tucumcari Dealership. Perner also determined that one of the Cross Country LLCs had six BUKE vehicles in its inventory for which it had not paid BUKE. The RFS disclosed this. Perner gave multiple copies of the RFS to Eastburg to distribute to BUKE’s other members. Both the RFS and the tax returns were accurate and correct. BUKE never paid $15,796.75 of the balance it owed Perner for the preparation of the tax returns and RFS.

14 Sometime in 2008, Branch began receiving notices from GMAC that pay-ments were not being timely made on the Credit Line. Because Branch was not re-ceiving monthly financial statements from BUKE’s bookkeeper in Tucumcari and was unhappy to be receiving notices from GMAC, Branch requested a meeting with Perner, which occurred in August 2008. At that meeting, Perner said he would ensure that Branch started receiving the monthly statements from the Tucumcari Dealer-ship, but he did not disclose anything else.15 In January 2009, GMAC wrote Eastburg and BUKE, advising that a recent audit showed untimely payments on the Credit Line for 66 out of 97 (68%) of the vehicles audited and that GMAC would increase BUKE’s interest rates on the Credit Line by 100 basis points (1%) until BUKE’s wholesale performance complied with the requirements of the Wholesale Security Agreement.16 Branch, who is the only BUKE member who is not also an owner of the Lovington Dealership, is also the only BUKE member who testified that he was not aware of Eastburg’s use of BUKE’s GM Badge and Credit Line to benefit the Cross Country LLCs until 2009. There is no testimony from Urlacher in the record. None of BUKE’s members ever objected to Eastburg’s use of BUKE’s GM Badge and Credit Line to purchase vehicles for the Cross Country LLCs until Branch started investigating the late payments on the Credit Line.C. Procedural History17 BUKE filed its complaint in June 2009 and filed an amended complaint in February 2011. The first amended complaint asserts the following claims: an unjust enrichment claim against the Cross Country LLCs and Cross Country Members; claims for conversion, account-ing, unfair competition, violation of New Mexico’s Unfair Practices Act, intentional interference with existing contractual relationship, intentional interference with prospective contractual relationship, and violation of the New Mexico Racketeering Act, against the Cross Country LLCs; and a professional malpractice claim against the Accountants.3 The Eastburg Defendants, Eastburg Partners, and Cross Country LLCs’ attorneys were voluntarily dismissed from the case prior to appeal.

3 The first amended complaint also asserted claims against the Cross Country LLCs’ attorneys, the “Eastburg Defendants,” and “Eastburg Partners,” which were voluntarily dismissed prior to appeal.



http://www.nmcompcomm.us/Advance Opinions18 BUKE challenges the district court’s rulings on several motions: (1) the Cross Country Members’ motion for summary judgment on the unjust enrichment claim, on the ground that they were protected by the Cross Country LLCs’ “corporate shield,” which the district court granted; (2) the joint motion for summary judg-ment filed by the Cross Country LLCs and Cross Country Members, on the ground that no evidence supported the core fac-tual allegation underlying BUKE’s claims that Eastburg did not have permission to use BUKE’s GM Badge and Credit Line to benefit the Cross Country LLCs, which the district court also granted; (3) BUKE’s motion for summary judgment on its con-version claim, based on this same factual issue, which the district court denied; (4) BUKE’s motions to reconsider the rulings on the motions filed by the Cross Country LLCs and Cross Country Members; (5) the Accountants’ motion for summary judg-ment on the accountant malpractice claim, on the ground that BUKE did not have an expert witness, which the district court granted; (6) BUKE’s motion to modify the scheduling order, including the deadline for disclosing expert witnesses, which the district court denied.II. DISCUSSION19 We first consider the district court’s summary judgment rulings in favor of De-fendants, which we review de novo. Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. We then address the court’s denial of BUKE’s mo-tion to amend the scheduling order, which we review for an abuse of discretion. See Reaves v. Bergsrud, 1999-NMCA-075, ¶ 13, 127 N.M. 446, 982 P.2d 497.A. The Summary Judgment Standard20 “Summary judgment is appropri-ate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.” Self, 1998-NMSC-046, ¶ 6; see Rule 1-056(C) NMRA; Bartlett v. Mirabal, 2000-NMCA-036, ¶ 17, 128 N.M. 830, 999 P.2d 1062. The appellate courts “view the facts in a light most favor-able to the party opposing summary judg-ment and draw all reasonable inferences in support of a trial on the merits.” Romero v. Philip Morris Inc., 2010-NMSC-035, ¶ 7, 148 N.M. 713, 242 P.3d 280 (internal quotation marks and citation omitted).21 Once the summary judgment mov-ant has made a prima facie case, the bur-den shifts to the non-movant to establish reasonable doubt as to the existence of a genuine issue of material fact. Bartlett,

2000-NMCA-036, ¶ 17. The non-movant may not rely on allegations or speculation, but must come forward with admissible evidence demonstrating a genuine issue requiring trial and also demonstrate that facts allegedly in dispute are material to the claims at issue. Rule 1-056(E); Romero, 2010-NMSC-035, ¶¶ 10-11. Materiality is determined by the governing substantive law; the inquiry is whether the fact is nec-essary to give rise to a claim. Romero, 2010-NMSC-035, ¶ 11. “Summary judgment is appropriate when a defendant negates an essential element of the plaintiff ’s case by demonstrating the absence of an issue of [material] fact regarding that element.” Mayfield Smithson Enters. v. Com-Quip, Inc., 1995-NMSC-034, ¶ 22, 120 N.M. 9, 896 P.2d 1156. Thus, summary judgment may be granted even though disputed factual issues remain. Tapia v. Springer Transfer Co., 1987-NMCA-089, ¶ 8, 106 N.M. 461, 744 P.2d 1264. B. Th e District Court Properly

Entered Summary Judgment, Dismissing BUKE’s Claims Against the Cross Country LLCs and Members

1. The District Court Correctly Concluded That Eastburg Used BUKE’s GM Badge and Credit Line With the Consent of a Majority of BUKE’s Members

22 BUKE contends that the district court erred in entering summary judg-ment in favor of the Cross Country LLCs and Members on all claims and in deny-ing its cross motion for partial summary judgment. The dispositive issue is whether Eastburg used BUKE’s GM Badge and Credit Line with the requisite permission of BUKE’s members. For the reasons set forth below, we affirm.a. The Act and Operating Agreement23 An LLC is an entity created by stat-ute—the New Mexico Limited Liability Company Act (the Act), codified at NMSA 1978, §§ 53-19-1 to -74 (1993, as amended through 2003). The stated policy of the Act is “to give maximum effect to the principle of freedom of contract and to the enforceability of operating agreements of [LLCs].” Section 53-19-65(A). This policy is reiterated in various provisions of the Act that explicitly state that they apply “[e]xcept as provided” or “[u]nless as otherwise provided” by the LLC’s articles of incorporation or operating agreement, or that otherwise allow for the operating agreement to dictate aspects of the LLC’s operation. See generally §§ 53-19-1 to -74;

see, e.g., Elf Atochem N. Am., Inc. v. Jaffari, 727 A.2d 286, 291 (Del. Super. Ct. 1999) (“The Act is replete with fundamental provisions made subject to modification in the Agreement (e.g., unless otherwise provided in a limited liability company agreement).” (omission, internal quotation marks, and footnote omitted)); F. Hodge O’Neal & Robert B. Thompson, O’Neal and Thompson’s Close Corporations and LLCs: Law and Practice § 5:1 (Rev. 3d. ed. 2013) (“There are default rules in [LLC] statute[s] or in the . . . articles of organi-zation filed with the state but most of the details about the rules for the entity are left to the operating agreement.”).24 This general policy of deference to a New Mexico LLC’s operating agreement is manifest in the plain text of Section 53-19-15(B), which provides that “[e]ach manager shall have such power to manage the business or affairs of the [LLC] as the articles of organization or an operating agreement shall provide.” It is also clearly expressed in Section 53-19-16(D), which addresses use of LLC property by an LLC manager:

Unless otherwise provided by the articles of organization or an operating agreement: . . . . D. every member who is vested with particular management responsibilities by the articles of organization or an operating agreement and every manager shall account to the [LLC] and hold as trustee for it any profit or benefit he derives from: . . . .(2) any use . . . of the company’s property, including confidential or proprietary information of the [LLC] or other matters entrusted to him as a result of his status as a member or manager unless: (a) the material facts of the rela-tionship of the interested man-ager or member to the contract, transaction or use were disclosed or known to all of the other man-agers or members who, in good faith, authorized or approved the contract, transaction or use by: 1) the affirmative vote of a majority of all of the disinterested manag-ers; or 2) the affirmative vote of all of the disinterested members, even though all of the disinter-ested managers were less than a majority of all of the managers



http://www.nmcompcomm.us/Advance Opinionsor even though all of the disin-terested members did not have a majority share of the voting power of all of the members[.]

Section 53-19-16(D)(2)(a) (emphasis added).25 The Act defines an “operating agree-ment” as “a written agreement providing for the conduct of the business and affairs of [an LLC.]” Section 53-19-2(O). The “operating agreement” is, in other words, a contract reflecting the terms governing the LLC’s operations, as agreed to by the LLC members.26 BUKE’s Operating Agreement was entered into by its members. It contains several provisions concerning the man-ager, including the following sections relied upon by the parties:

4.1. Liability of Members. The liability of the Members shall be limited as provided in the Act. The Members shall take no part whatever in the control, man-agement, direction or operation of the Company’s affairs and shall have no power to bind the Company except when a Mem-ber is acting as a Manager. The Manager(s) may from time to time seek advice from the Mem-bers on major policy decisions but need not accept such advice, and at all times the Manager(s) shall have the exclusive right to control and manage the Com-pany. . . . . 4.2.1. Authority. Except to the extent otherwise provided herein, the Manager(s) shall have the exclusive right to manage all of the affairs of the Company. . . . .4.2.8. Prohibitions. Without the consent of a majority of the Members, the Manager(s) shall not have the authority to: . . . .(c) possess the assets of the Company (including any real property or personal property as-sets), or assign rights in the assets of the Company, for other than a Company purpose[.]

b. Statutory Analysis27 “Statutory interpretation is an issue of law, which we review de novo.” N.M. Indus. Energy Consumers v. N.M. Pub. Regulation Comm’n, 2007-NMSC-053, ¶ 19, 142 N.M. 533, 168 P.3d 105. Our

task is to determine and give effect to the Legislature’s intent, looking first to the plain language of the statute and giving the words their ordinary meaning. Marbob Energy Corp. v. N.M. Oil Conservation Comm’n, 2009-NMSC-013, ¶ 9, 146 N.M. 24, 206 P.3d 135. In this case, the relevant text is clear.28 As noted, Section 53-19-65(A) plainly directs that the Act’s provisions are to be construed “to give maximum effect to the principle of freedom of contract and to the enforceability of operating agreements of [LLCs].” Just as plainly, Section 53-19-16(D)(2) directs that its terms concerning use of LLC property by a manager do not apply if the terms of the LLC’s articles of organization or operating agreement pro-vide otherwise. Here, the pertinent terms of the Operating Agreement do provide otherwise, stating that “the Manager(s) shall have the exclusive right to manage all of the affairs of the Company,” and prohibit-ing the manager only from “possess[ing]” or “assign[ing]” rights in the LLC’s as-sets for other than a company purpose “[w]ithout the consent of a majority of the Members[.]” (Emphasis added.) We conclude that the statute requires that we construe the Operating Agreement as written and thus that Eastburg’s use of the GM Badge and Credit Line was authorized if consented to by a majority of BUKE’s members.29 The parties disagree as to whether Eastburg’s “use” of BUKE’s GM Badge and Credit Line falls within the ambit of the Operating Agreement’s prohibition against the manager’s “possess[ion]” or “assign[ment]” of BUKE assets “for other than a Company purpose” unless with the consent of a majority of BUKE’s members. The Cross Country LLCs and Cross Coun-try Members contend that Eastburg’s “use” neither constituted an “assignment” nor amounted to “possession” of those assets and so was not prohibited at all by the Operating Agreement. Alternatively, they argue BUKE failed to meet its summary judgment burden to adduce evidence suf-ficient to support a reasonable inference that Eastburg lacked the consent of a majority of BUKE members required by the Operating Agreement.30 In addition to arguing that there is a dispute of material fact on the issue of consent, BUKE makes several argu-ments aiming to establish that Section 53-19-16(D)(2)(a)’s provision requiring “the affirmative vote of a majority of all of the disinterested managers” must govern

the manager’s “use” of BUKE’s assets, notwithstanding that the Operating Agree-ment requires only consent of a majority of BUKE’s members for the manager to “possess” or “assign” BUKE’s assets. We are not persuaded.31 For one thing, BUKE’s strained con-struction contravenes the express policy of the Act “to give maximum effect to the principle of freedom of contract and to the enforceability of operating agreements of [LLCs].” Section 53-19-65(A). And its suggestion that the Act and Operating Agreement should be read to require “the affirmative vote of a majority of all of the disinterested managers” for mere “use” of BUKE assets by the manager, but only the consent of a majority of BUKE members for the manager to “possess” or “assign” BUKE assets, makes no sense, as a prac-tical matter, or as a matter of statutory interpretation. See § 53-19-16(D)(2)(a). We see no “irreconcilable conflict among statutory provisions[,]” any mistake or “absurdity that the Legislature could not have intended,” or any other reason to depart from the clear statutory mandate to enforce the Operating Agreement as written. Regents of the Univ. of N.M. v. N.M. Fed’n of Teachers, 1998-NMSC-020, ¶ 28, 125 N.M. 401, 962 P.2d 1236.32 In any event, BUKE concedes that the Operating Agreement addresses the manager’s “use” of BUKE assets, stating that it provides that “consent of a major-ity of BUKE’s members is required to use company assets for other than a company purpose.” Given this concession and the plain language of the Act and Operating Agreement, BUKE’s contentions that the Act’s provision requiring an affirmative vote of the majority of disinterested mem-bers applies because it is “more specific” and that the Act’s default provisions ap-ply unless “repugnant” to the Operating Agreement’s terms fail. BUKE has not cited any persuasive authority for these arguments, and we have found none.33 Our conclusion that the Operating Agreement controls on the facts of this case comports with rulings in other states. See NAMA Holdings, LLC v. World Mkt. Ctr. Venture, LLC, 948 A.2d 411, 418 n.17 (Del. Ch. 2007) (noting that an LLC agree-ment can create a contractual inspection right broader or narrower than that cre-ated by statute), aff ’d, 945 A.2d 594 (Del. 2008); Lenticular Europe, LLC ex rel. Van Leeuwen v. Cunnally, 693 N.W.2d 302, 307 (Wis. Ct. App. 2005) (noting that when provisions in the LLC statute state that



http://www.nmcompcomm.us/Advance Opinionsthey apply unless otherwise provided in an operating agreement, those provisions allow members of an LLC to choose to be governed by terms that differ from those in the statute); see also Maldonado ex rel. Maldonado v. SmithKline Beecham Corp., 841 F. Supp. 2d 890, 894 (E.D. Pa. 2011) (holding that the statutory default provi-sion requiring that an LLC’s management shall be vested in its members does not apply where the operating agreement pro-vided otherwise); Overhoff v. Scarp, Inc., 812 N.Y.S.2d 809, 818-19 (Sup. Ct. 2005) (holding that the operating agreement’s quorum terms superseded statutory re-quirements); Phillip L. Jelsma and Pamela Everett Nollkamper, The Limited Liability Company § 1:10 (2013) (stating that one of the primary benefits of an LLC is that it “is a highly flexible entity”).c. Summary Judgment on Eastburg’s

Authority Issue Was Proper34 BUKE contends that Eastburg failed to inform and concealed from BUKE’s members his use of the GM Badge and Credit Line to benefit the Cross Country LLCs and Cross Country Members; failed to obtain the requisite authority from BUKE’s members; and that this “means that Eastburg’s use of BUKE’s credentials and credit line was unauthorized.” Having determined as a matter of law that East-burg’s actions were authorized if he had the consent of a majority of BUKE’s members as required by the Operating Agreement, we consider whether the summary judg-ment record supports the district court’s rulings in favor of the Cross Country LLCs and Cross Country Members on the consent issue.35 We frame the analysis. Our task is to interpret and apply the terms of BUKE’s Operating Agreement as written; we may not rewrite the contract the members made for themselves. See CC Hous. Corp. v. Ryder Truck Rental, Inc., 1987-NMSC-117, ¶ 6, 106 N.M. 577, 746 P.2d 1109 (“When discerning the purpose, meaning, and intent of the parties to a contract, the court’s duty is confined to interpreting the contract that the parties made for them-selves, and absent any ambiguity, the court may not alter or fabricate a new agreement for the parties.”); see also W. Farm Bureau Ins. Co. v. Carter, 1999-NMSC-012, ¶ 4, 127 N.M. 186, 979 P.2d 231 (noting that contract interpretation is a matter of law reviewed de novo).36 Unlike Section 53-19-16(D), which the members chose not to adopt, BUKE’s Operating Agreement provides no spe-

cific requirements by which a manager must obtain member consent, such as prior, written, or express consent; nor can we read any such requirement into the Operating Agreement, where BUKE has presented no evidence that its members intended to include it. See Espinoza v. Town of Taos, 1995-NMSC-070, ¶ 15, 120 N.M. 680, 905 P.2d 718 (“We will not read into a contract conditions not intended by the parties.”). We therefore apply the Operating Agreement’s requirement that a majority of BUKE’s members “consent” using the ordinary meaning of the word. See Crownover v. Nat’l Farmers Union Prop. & Cas. Co., 1983-NMSC-099, ¶ 16, 100 N.M. 568, 673 P.2d 1301 (“Absent express language to the contrary, a court should apply the every day meaning in interpreting the terms of a contract.”). Without any modifier, “consent” simply means “[a]greement, approval, or permis-sion as to some act or purpose,” which can be inferred. See Black’s Law Diction-ary 346 (9th ed. 2009); Webster’s II New College Dictionary 240 (1995) (defining consent, in part, as “[v]oluntary allowance of what is planned or done by another”); c.f. Kilpatrick v. Motor Ins. Corp., 1977-NMSC-019, ¶ 13, 90 N.M. 199, 561 P.2d 471 (noting that when an automobile insurance policy requires that permission of the named insured must be obtained for another to use the vehicle, and that the person granted permission to use the vehicle must act within the scope of that permission, permission may be implied from the conduct of the insured, includ-ing the insured’s lack of objection); Jessen v. Nat’l Excess Ins. Co., 1989-NMSC-040, 108 N.M. 625, 776 P.2d 1244 (stating that under New Mexico law, ratification may be inferred by a principal’s acquiescence in the results of an unauthorized act of an agent), abrogated on other grounds as recognized by Teague-Strebeck Motors, Inc. v. Chrysler Ins. Co., 1999-NMSC-109, 127 N.M. 603, 985 P.2d 1183; Ulibarri Land-scaping Material, Inc. v. Colony Materials, Inc., 1981-NMCA-148, ¶ 15, 97 N.M. 266, 639 P.2d 75 (“One may infer affirmance by a principal of an unauthorized transaction of its agent from the principal’s failure to repudiate it.”). The parties do not dispute that the question whether there is a “ma-jority” of BUKE’s members is determined using the ownership percentages of each member.37 The Cross Country LLCs and Cross Country Members cite the following un-disputed facts in support of their prima

facie contention that Eastburg used the GM Badge and Credit Line with the con-sent of a majority of BUKE’s members. See Romero, 2010-NMSC-035, ¶ 10 (stating that a summary judgment movant meets its “initial burden of establishing a prima facie case” when it presents “such evidence as is sufficient in law to raise a presump-tion of fact or establish the fact in question unless rebutted” (internal quotation marks and citation omitted)).38 When BUKE selected Eastburg as its manager, BUKE’s other members knew that Eastburg already operated and would continue to operate the Cross Country LLCs. After Eastburg became BUKE’s manager, BUKE adopted the “Cross Coun-try Auto Sales” name for its Tucumcari dealership. Eastburg spoke openly to the media about the relationship between the Tucumcari, Albuquerque, and Lov-ington Cross Country LLC dealerships, including the fact that he was moving inventory among the different dealerships. For example, Eastburg’s interview for the 2007 New Mexico Business Weekly article makes clear that Eastburg was using the GM Badge and Credit Line to purchase vehicles for the Cross Country LLCs. BUKE itself posted the Business Weekly article on its website.39 In addition, BUKE’s staff and the Cross Country LLCs’ bank were aware of Eastburg’s use of BUKE’s GM Badge and Credit Line for the Albuquerque Cross Country LLCs, and BUKE’s staff even helped implement the arrange-ment. Moreover, all of BUKE’s members, except for Branch, were also owners of the Lovington Dealership, and Eastburg used BUKE’s GM Badge to benefit that dealership as well. Finally, none of BUKE’s members objected to Eastburg’s use of the GM Badge and Credit Line for three years, until Branch discovered that BUKE was late making payments on the Credit Line.40 This undisputed evidence estab-lishes that Eastburg never concealed his intention to use the GM Badge and Credit Line to purchase vehicles for the Cross Country LLCs; that members within BUKE, including Karger, knew of East-burg’s intention, and that Eastburg’s use of the GM Badge and Credit Line for this purpose was made public, including by the posting of Eastburg’s interview on BUKE’s own website. This evidence, in conjunction with the facts that for three years none of BUKE’s members objected, and that Karger and Urlacher also benefitted from the same arrangement in their capacity



http://www.nmcompcomm.us/Advance Opinionsas owners of the Lovington Dealership during that time, is sufficient to establish a presumption of fact (i.e., a prima facie case) that a majority of BUKE’s members (Eastburg (32.5%), Urlacher (32.5%), and Karger (15%)) consented to Eastburg’s use of the GM Badge and Credit Line to purchase vehicles for the Cross Country LLCs. As a result, the burden shifted to BUKE “to demonstrate the existence of specific evidentiary facts which would require trial on the merits.” Id. (internal quotation marks and citation omitted). BUKE failed to meet that burden.41 The only direct evidence relied upon by BUKE to support its contention that Eastburg lacked the requisite consent is Branch’s deposition testimony that he did not know about or consent to Eastburg’s use of the GM Badge and Credit Line to purchase vehicles for the Cross Country LLCs. BUKE presented no affidavit or de-position testimony from Urlacher. Instead, it simply asserts that we should infer that Urlacher did not consent from Branch’s testimony that Branch did not know or consent, and Eastburg’s testimony that he did not remember having a conversa-tion with either Branch or Urlacher about using the GM Badge and Credit Line for the Cross Country LLCs. BUKE does not address the fact that Urlacher (unlike Branch) was an owner of the Lovington Dealership, which also benefitted from Eastburg’s use of the GM Badge and Credit Line. Nor does BUKE attempt to rebut the evidence that Eastburg’s use of these assets for three years was open and even publicized, including in an article posted on BUKE’s own website.42 As to Karger, BUKE’s own evidence confirms that he knew, beginning in 2006, about Eastburg’s use of the GM Badge to purchase vehicles for the Cross Country LLCs and did not object. Although the par-ties dispute whether Eastburg told Karger that he would pay BUKE $500 for each vehicle bought at a closed GM auction, the dispute is immaterial. Even assuming that Karger (15%) consented only because of Eastburg’s alleged promise to pay $500 per vehicle, BUKE has set forth no spe-cific evidentiary facts to demonstrate that Eastburg (32.5%) and Urlacher (32.5%), who together hold a majority ownership interest in BUKE, did not consent.43 In sum, the specific evidentiary facts proffered by BUKE are insufficient to support a reasonable inference that East-burg lacked the consent of a majority of BUKE’s members to use BUKE’s assets as

he did. See id. (explaining that non-movant “may not simply argue that such eviden-tiary facts might exist,” but “must adduce evidence to justify a trial on the issues[,]” which in turn “must result in reasonable inferences” and that “[a]n inference is not a supposition or a conjecture, but is a logical deduction from facts proved and guess work is not a substitute therefor” (alteration, internal quotation marks, and citations omitted)); Muse v. Muse, 2009-NMCA-003, ¶ 51, 145 N.M. 451, 200 P.3d 104 (“[A]rguments of counsel are not evidence.”).44 In view of the foregoing, we af-firm the district court’s rulings granting summary judgment in favor of the Cross Country LLCs and Cross Country Mem-bers on their summary judgment motion and denying BUKE’s motion for partial summary judgment premised on the same factual issue.2. The District Court Properly

Granted Summary Judgment Dismissing BUKE’s Unjust Enrichment Claim Against the Cross Country Members

45 A plaintiff claiming unjust enrich-ment must show that “(1) another has been knowingly benefitted at one’s expense (2) in a manner such that allowance of the other to retain the benefit would be un-just.” Ontiveros Insulation Co. v. Sanchez, 2000-NMCA-051, ¶ 11, 129 N.M. 200, 3 P.3d 695.46 BUKE’s unjust enrichment claim against the Cross Country Members is premised solely on the Members’ receipt of profits and distributions from the Cross Country LLCs and BUKE’s contention that Eastburg used BUKE’s GM Badge and Credit Line without the requisite con-sent. BUKE does not contend and has not shown that the distributions themselves were wrongful. To the contrary, BUKE takes pains to point out that distributions to members are required by the Act, as they are by Section 3.2 of the Operating Agreement. Nor has BUKE shown that the Cross Country Members engaged in any unlawful conduct. According to BUKE, the Cross Country Members’ “receipt of the benefits from the use of BUKE assets was unjust because Eastburg lacked the authority to use the [GM] credentials and GMAC credit line for the [Cross Country LLCs].”47 The Cross Country Members have made numerous arguments in defense of the district court’s ruling in their favor, citing law limiting the personal liability

of LLC members for the debts and obliga-tions of the company, including the protec-tions provided in Section 53-19-13 (“No member or manager of a limited liability company . . . shall be obligated person-ally for any debt, obligation or liability of the limited liability company solely by reason of being a member or manager of the limited liability company[.]”) and by the doctrine of “piercing the corporate veil,” the requirements of which BUKE has conceded it cannot meet. We need not address the Cross Country Members’ various arguments.48 Given BUKE’s stated basis for its un-just enrichment claim, the issue presented is resolved by our conclusion that the only reasonable inference to be drawn from the undisputed facts is that a majority of BUKE’s members consented to Eastburg’s use of BUKE’s assets; that is, Eastburg’s challenged use of BUKE’s assets was not unauthorized, and any profits or distribu-tions the Cross Country Members received from the Cross Country LLCs were not unjustly retained. The district court’s en-try of summary judgment dismissing the unjust enrichment claim was correct.C. The District Court Properly

Entered Summary Judgment Dismissing BUKE’s Claims Against the Accountants

49 BUKE contends that the district court erred when it granted summary judgment on its accountant malpractice claim because BUKE did not present expert testimony to support it. BUKE argues that the facts it presented on sum-mary judgment demonstrate that Perner’s alleged malpractice presents a conflict of interest so obvious that it falls within the common knowledge of lay jurors. We must address whether expert testimony is neces-sary to establish an accountant malpractice claim based on an accountant’s alleged conflict of interest.50 Generally, a plaintiff must prove the following elements to prevail on a claim for professional malpractice based on negligence: “(1) the employment of the defendant [professional]; (2) the defendant [professional’s] neglect of a reasonable duty; and (3) the negligence resulted in and was the proximate cause of loss to the plaintiff.” Hyden v. Law Firm of McCormick, Forbes, Caraway & Tabor, 1993-NMCA-008, ¶ 9, 115 N.M. 159, 848 P.2d 1086. Professional malpractice based upon breach of duty concerns violations of a standard of conduct. See Spencer v.



http://www.nmcompcomm.us/Advance OpinionsBarber, 2013-NMSC-010, ¶ 17, 299 P.3d 388. “Proof of the standard of conduct is necessary to maintain an action for malpractice.” Id. The standard of conduct in a professional negligence case “is mea-sured by the duty to apply the knowledge, care, and skill of reasonably well-qualified professionals practicing under similar circumstances.” Adobe Masters, Inc. v. Downey, 1994-NMSC-101, ¶ 3, 118 N.M. 547, 883 P.2d 133.51 Expert testimony is generally neces-sary to explain the applicable standard of conduct, and a plaintiff ’s failure to present expert testimony to support a professional malpractice claim is usually fatal. See Cer-vantes v. Forbis, 1964-NMSC-022, ¶ 12, 73 N.M. 445, 389 P.2d 210, modified on other grounds by Pharmaseal Labs., Inc. v. Goffe, 1977-NMSC-071, 90 N.M. 753, 568 P.2d 589; First Nat’l Bank of Clovis v. Diane, Inc., 1985-NMCA-025, ¶ 24, 102 N.M. 548, 698 P.2d 5 (“To establish malpractice, testimony of another attorney as to the ap-plicable standards of practicing attorneys is generally necessary.”). “However, if negligence can be determined by resort to common knowledge ordinarily possessed by an average person, expert testimony as to standards of [conduct] is not essential.” Pharmaseal Labs., 1977-NMSC-071, ¶ 17; see Adobe Masters, 1994-NMSC-101, ¶ 9 (“In professional negligence cases, both breach of the implied warranty to use rea-sonable skill under contract law and negli-gence resulting in a finding of malpractice must be proved by expert testimony unless the case is one where exceptional circum-stances within the common experience or knowledge of a layman are present.”); Walters v. Hastings, 1972-NMSC-054, ¶ 40, 84 N.M. 101, 500 P.2d 186 (“[C]ases may arise in which the asserted shortcomings of the attorney are such that they may be recognized or inferred from the common knowledge or experience of laymen.”).52 Under this exception, our courts have determined that expert testimony was not necessary in several medical malpractice cases that posed exceptional circumstances. For example, our courts did not require expert testimony in a case where a chiropractor fractured several of his patient’s ribs while performing an adjustment, Mascarenas v. Gonzales, 1972-NMCA-062, ¶¶ 3, 13, 83 N.M. 749, 497 P.2d 751; where a physician jerked a tube from a patient’s nose so forcefully it caused a balloon filled with mercury to rupture into the patient’s lungs, Pharmaseal Labs., 1977-NMSC-071, ¶¶ 6, 17-20; where a

physician fractured his patient’s femur inserting a metal pin during an operation then left the pin partially protruding from the bone into the soft tissue of the patient’s leg, Eis v. Chesnut, 1981-NMCA-040, ¶¶ 3, 9-10, 96 N.M. 45, 627 P.2d 1244; or where a physician performed five breast implant operations on a patient, after which the im-plant was not even in “the general vicinity” of where it should have been, Toppino v. Herhahn, 1983-NMSC-079, ¶¶ 7-8, 15, 100 N.M. 564, 673 P.2d 1297. In each of those cases, the appellate courts concluded it would not be unreasonable for a layperson to understand from the facts adduced that the defendant physicians may have com-mitted professional negligence, a decision to be made by the fact finder or jury. Simi-larly, courts in other states have observed that expert testimony was not necessary to establish professional malpractice where an attorney missed deadlines or stole client funds, Meyer v. Dygert, 156 F. Supp. 2d 1081, 1091 (D. Minn. 2001), or in cases where an attorney failed to appear in court on his client’s behalf, notify a client of termination of employment, inform a client of a settlement offer, follow a client’s instructions and adequately insulate it from creditors, or file an action within the statute of limitations, Wastvedt v. Vaaler, 430 N.W.2d 561, 565 (N.D. 1988).53 We have not previously extended to accountant malpractice cases the prin-ciples we apply to physicians, attorneys, and architects concerning the necessity for expert testimony. However, the parties do not argue, and we do not see any reason why we should not do so now. See, e.g., Rino v. Mead, 55 P.3d 13, 19 (Wyo. 2002); Kemmerlin v. Wingate, 261 S.E.2d 50, 51 (S.C. 1979) (noting that standard of care for accountants is the same as for doctors and other professionals, and since that area is beyond the realm of ordinary lay knowledge, expert testimony is usually necessary to establish the standard of care and the defendant’s departure therefrom). Accordingly, we hold that the same prin-ciples that govern the necessity for expert testimony in other kinds of professional malpractice cases apply to accountant malpractice cases.54 BUKE argues that it has presented undisputed evidence demonstrating that Perner’s breach of the applicable standard of care is so obvious that an expert is not necessary in this case. BUKE asserts that “[l]oyalty and betrayal are not obscure concepts” and every person who has been “double-crossed” can understand the di-

vided loyalties Perner faced. In particular, BUKE claims Perner breached his duty in two instances. First, BUKE argues that Perner should have declined to perform work for BUKE because he should have known that accepting the engagement would result in a conflict between BUKE’s interests and those of the Cross Country LLCs. Second, BUKE contends that, dur-ing the August 2008 meeting with Branch and Perner, Perner should have voluntarily told Branch that cars listed on BUKE’s in-ventory were on the Cross Country LLCs’ lots, that several of those cars were not yet paid for, and that the Credit Line was “out of trust” and “subject to call,” even though he had previously disclosed those facts in the RFS he provided to Eastburg on behalf of BUKE. BUKE concludes that we should infer from these facts that Perner faced a conflict of interest between BUKE and his “professional obligations” to the Cross Country LLCs, “which made it awkward, at a minimum, to disclose information to BUKE adverse to the interests of his pre-existing clients.” BUKE further claims that Perner faced a conflict involving self-interest because Perner had become busi-ness partners with Eastburg and several of the Cross Country LLC Members in a new business venture and because Perner was to be paid $16,000 for the BUKE RFS and full disclosure to Branch might mean BUKE would terminate Perner’s engage-ment. By not volunteering information to Branch at the August 2008 meeting, BUKE asserts that it is obvious that Perner “played” Branch and protected the Cross Country LLCs, the Cross Country Mem-bers, and his own interests to the detriment of BUKE.55 In our view, this case does not present the type of exceptional circum-stances that obviate the need for expert testimony. We note that, in general, ex-pert testimony is necessary to establish a professional negligence claim based on an alleged conflict of interest. See Meyer, 156 F. Supp. 2d. at 1091 (holding that conflict of interest claims involve information that is not within the com-mon knowledge of the jury); see also Geiserman v. MacDonald, 893 F.2d 787, 793-94 (5th Cir. 1990) (holding that a malpractice claim premised on alleged conflict of interest or breach of fiduciary duty requires expert testimony); Meller v. Bartlett, 580 A.2d 484, 485 (Vt. 1990) (holding that lack of expert testimony was fatal to claims of conflict of interest, failure to account, and unauthorized



http://www.nmcompcomm.us/Advance Opinionshiring of another attorney). Here, Perner was hired to prepare tax returns and an RFS for BUKE, a car dealership owned by an LLC. At the time BUKE hired Perner to do its tax returns and RFS, Perner had previously prepared tax returns for the Cross Country LLCs. We do not believe that an average person would commonly know whether or how a conflict of in-terest might arise when an accountant prepares tax returns for similar busi-nesses. An average person also would not know what information a reasonable accountant would discover in preparing a business’s tax returns or RFS, whether a reasonable accountant in Perner’s posi-tion would have necessarily discovered Eastburg’s allegedly wrongful conduct in the scope of his work, whether a reason-able accountant should investigate any possible wrongdoing discovered within the course of the work to be performed, and what form any subsequent report of that investigation would take. To this end, an average person would not know whether a reasonably well-qualified accountant would verbally disclose in a meeting with a passive minority member of an LLC client the same items the accountant previously disclosed in a written RFS it provided to the LLC’s managing member. Further, although this case is a conflict of interest case and BUKE does not question Perner’s execution of specific accounting duties, the case is rife with questions related to the particular technical tasks involved in accounting, such as what an RFS is, how an accountant prepares an RFS or a business’s tax returns, what a credit line is, and what it means if the credit line is “out of trust.” None of these items falls under the common knowledge of an average person. In short, we conclude that this is precisely the kind of case in which expert testimony is necessary. See, e.g., Brown-Wilbert, Inc. v. Copeland Buhl & Co., 732 N.W.2d 209, 218 (Minn. 2007) (holding that, to survive a motion for directed verdict in an accountant malpractice case, a plaintiff must pres-ent expert testimony identifying the applicable standard of care and opine that the accountant deviated from that standard and that the departure caused the plaintiff ’s damages); Gertler v. Sol Masch & Co., 835 N.Y.S.2d 178, 179 (App. Div. 2007) (upholding grant of directed verdict in accounting malpractice claim because there was no expert testimony to establish applicable standards of profes-

sional practice); Greenstein, Logan & Co. v. Burgess Mktg., Inc., 744 S.W.2d 170, 185 (Tex. Ct. App. 1987) (emphasizing that expert testimony is usually neces-sary to establish the requisite standard of care and skill, a departure from that standard, and causation in an accountant malpractice case).56 To the extent BUKE relies on Spencer to support that it does not need expert testimony in this case, that argument is unavailing. In Spencer, our Supreme Court held that the Rules of Professional Conduct may be used to “illustrate the standard of conduct expected of a lawyer when confronted with a conflict of inter-est.” 2013-NMSC-010, ¶ 18. Our Supreme Court determined that “although the Rules of Professional Conduct cannot be used as a basis for civil liability, the rules may be used to explain [a party’s] professional obligations to [another.]” Id. ¶ 19. The is-sue that case addressed was “whether the duties a lawyer owes wrongful death statu-tory beneficiaries are governed, in whole or in part, by the Rules of Professional Conduct[.]” Id. ¶ 4 (alteration, internal quotation marks, and citation omitted). However, our Supreme Court in Spencer did not address whether expert testimony would ultimately be necessary to establish a professional malpractice claim based on an alleged conflict of interest. Rather, our Supreme Court explicitly noted that the question of whether a professional “conformed to the standard of conduct required by the Rules of Professional Conduct will depend on the evidence introduced at trial.” Id. ¶ 19.57 Here, although citation to the ap-plicable conflict of interest provisions of the code of professional conduct for ac-countants may help illustrate the standard of care for an accountant in a conflict of interest case, see 16.60.5.12 NMAC (01/01/2007), expert testimony is never-theless required to inform the fact finder what is considered a conflict of interest under the code, and to resolve whether Perner’s alleged actions violated it. See, e.g., Nw. Life Ins. Co. v. Rogers, 573 N.E.2d 159, 163-64 (Ohio Ct. App. 1989) (“Because of the very nature and complexity of the Code of Professional Responsibility and the conduct of legal matters, expert testi-mony is required to support [malpractice] allegations except in those cases which are so patently obvious as to negate this requirement.”); cf. Lumbermens Mut. Cas. Co. v. Thornton, 92 S.W.3d 259, 268 (Mo. Ct. App. 2002) (noting that, in accountant

malpractice cases, the meaning of auditing standards and their application to the facts of the case is a question of fact to be deter-mined with the aid of expert testimony).58 We hold that, in a professional malpractice case based on an accountant’s purported conflict of interest, expert testimony is necessary to establish the applicable standard of conduct, unless exceptional circumstances make the al-leged breach so obvious that it falls within the common knowledge of an average layperson. BUKE failed to prove that such exceptional circumstances exist. Because expert testimony was required to establish the applicable standards of conduct re-garding an accountant’s conflict of interest, and BUKE provided none, we affirm the district court’s grant of summary judgment on the accountant malpractice claim.D. The District Court Did Not Abuse

Its Discretion in Denying BUKE’s Motion to Amend the Scheduling Order

59 BUKE contends that the district court abused its discretion in denying its motion to amend the scheduling order to permit BUKE to designate an expert wit-ness.60 The original complaint was filed in June 2009. In September 2010, the district court entered a scheduling order setting a deadline of April 2011 for BUKE to file and serve its expert witness disclosure and setting a trial date in December 2011. BUKE moved to amend its complaint in December 2010, and filed it in February 2011, adding the Accountants as parties and asserting a claim against them for pro-fessional malpractice. Approximately two weeks after filing the amended complaint, BUKE filed a stipulated notice extending BUKE’s expert witness disclosure deadline to May 2011. BUKE did not designate an accountant malpractice expert witness (or any expert witness) during that time or seek additional time to do so.61 The amendment of the complaint led to a series of recusals and peremptory chal-lenges, and the case was finally assigned to a district judge in May 2011. BUKE deposed Perner in August 2011. BUKE claims that it first requested an additional extension of time to designate expert witnesses at a scheduling conference in September 2011, but the conference was unrecorded, and there is no evidence to support BUKE’s contention.62 BUKE did not file a motion to modify the scheduling order until De-cember 2011. The motion asserted that



http://www.nmcompcomm.us/Advance Opinionsgood cause existed to “conduct limited but necessary discovery, to file dispositive motions, and to prepare and file a pretrial order.” The motion did not specifically re-quest that the expert deadline be extended, although a proposed amended scheduling order, attached as an exhibit, provided an extended expert disclosure deadline. At a March 2012 hearing, the district court reset the trial date to July 2012 and granted additional time to conduct limited discov-ery. The court did not, however, extend the expert disclosure deadline, stating that it was “just too late” to do so. BUKE challenges that ruling. We review for an abuse of discretion, which “occurs when the [district] court’s ruling is against the facts, logic, and circumstances of the case or is untenable or unjustified by reason.” Reaves, 1999-NMCA-075, ¶ 13.63 “A scheduling order shall not be modified except by order of the court upon

a showing of good cause.” Rule 1-016(B) NMRA. “We will not interfere with the [district] court’s enforcement of pretrial deadlines. Adherence to such schedul-ing orders [is] critical in maintaining the integrity of judicial proceedings.” Reaves, 1999-NMCA-075, ¶ 28 (alteration, internal quotation marks, and citation omitted).64 We cannot say that the district court abused its discretion when it refused to amend the scheduling order to allow BUKE to designate an expert witness. BUKE filed its motion approximately ten months after it filed its claims against the Accountants, eight months after the original scheduling order deadline for designating witnesses, and seven months after the previously granted extension to that deadline had expired. The motion did not specifically request an extension on the expert disclosure deadline. Moreover, BUKE never identified any expert wit-

ness and does not say that it had actually retained an expert witness by the time the district court heard its motion, although it had to have known that it needed to have expert testimony to support the ac-countant malpractice claim asserted in the amended complaint. See id. ¶ 27.65 Accordingly, the district court did not abuse its discretion in denying BUKE’s request to amend the scheduling order to allow it to designate an expert witness for its accounting malpractice claim.III. CONCLUSION66 For the reasons set forth above, we affirm the district court in all respects.67 IT IS SO ORDERED.

LINDA M. VANZI, Judge

WE CONCUR:RODERICK T. KENNEDY, Chief JudgeJONATHAN B. SUTIN, Judge






MELISSA GALETTI,Plaintiff-Appellant,

v.DERRAL W. REEVE, KIM GILLEN, BRENDA CONYNE,

and TEXICO CONFERENCE ASSOCIATION OF SEVENTH-DAY ADVENTISTS,Defendants-Appellees

Docket No. 32,625 (filed May 28, 2014)

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTYC. SHANNON BACON, District Judge

WAYNE R. SUGGETTMAESTAS & SUGGETT, P.C.Albuquerque, New Mexico

for Appellant

EDWARD RICCOJOCELYN DRENNAN

RODEY, DICKASON, SLOAN, AKIN & ROBB, P.A.

Albuquerque, New Mexicofor Appellees

Opinion

Timothy L. Garcia, Judge1 Melissa Galetti (Plaintiff ) appeals from the district court’s grant of Defen-dants’ motion to dismiss for failure to state a claim pursuant to Rule 1-012(B)(6) NMRA. The district court dismissed Plaintiff ’s complaint against the Texico Conference Association of Seventh-Day Adventists (the Conference), Derral W. Reeve, Kim Gillen, and Brenda Conyne because it concluded that Defendants are immune from suit pursuant to the church autonomy doctrine, which is based on the First Amendment. See Celnik v. Congrega-tion B’Nai Israel, 2006-NMCA-039, ¶¶ 10-11, 139 N.M. 252, 131 P.3d 102. We conclude that the district court erred in dismissing Plaintiff ’s complaint. The First Amendment does not immunize every legal claim against a religious institution or its members, but only those claims that are rooted in religious belief. See id.; see also Bryce v. Episcopal Church in the Diocese of Colo., 289 F.3d 648, 657 (10th Cir. 2002). As pled, Plaintiff ’s claims are not rooted in religious belief and thus do not implicate the First Amendment as a matter of law.

We reverse the dismissal of Plaintiff ’s com-plaint and remand for further proceedings.BACKGROUND2 For purposes of this appeal, “we accept all well-pleaded factual allegations in the complaint as true and resolve all doubts in favor of sufficiency of the complaint.” Madrid v. Vill. of Chama, 2012-NMCA-071, ¶ 18, 283 P.3d 871 (internal quotation marks and citation omitted), cert. denied, 2012-NMCERT-006, 294 P.3d 1243.3 Plaintiff alleges that she was employed as a principal and a teacher at Crestview Elementary School (Crestview) located in Albuquerque, New Mexico, from 2009 to 2011. Crestview is a religious school operated by the Conference, which is part of the Southwestern Union and North American Division of the Seventh-Day Adventist Church. Plaintiff alleges that she was harassed by her supervisor, Reeve, in the summer of 2010.1 Plaintiff submitted a complaint to the Conference, which issued a written reprimand to Reeve. Plaintiff alleges that Reeve, Gillen, and Conyne retaliated against her, which ultimately led to the termination of her employment.4 Plaintiff alleges that she was told she would be employed as a teacher at

Crestview for the 2011-12 school year and was not notified of a change prior to the May 1, 2011, deadline. She filed a formal charge of discrimination with the Equal Employment Opportunity Commission on May 17, 2011. Reeve raised the issue of Plaintiff ’s employment at a board meeting on May 23, 2012. At the meeting, which Plaintiff did not attend, the Board voted to terminate Plaintiff ’s employment “without reason or cause.”5 Plaintiff filed a complaint for wrongful termination asserting the following claims for relief: (1) breach of contract against the Conference; (2) retaliatory discharge and violation of the New Mexico Human Rights Act against Reeve; (3) intentional interference with contract and civil con-spiracy against Reeve, Gillen, and Conyne; and (4) defamation and civil conspiracy against Reeve, Gillen, and Conyne.2 Plain-tiff sought compensatory and punitive damages, interest, attorney fees, and costs.6 Defendants filed a motion to dismiss pursuant to Rule 1-012(B)(6), arguing that all of Plaintiff ’s claims are barred by First Amendment considerations embodied in the church autonomy doctrine. In support of their motion, Defendants submitted portions of the Texico Conference Em-ployee Handbook and the Southwestern Union Conference Education Code K-12. Defendants also filed a motion for a pro-tective order, arguing that they should not have to respond to Plaintiff ’s discovery requests. Plaintiff fully responded to these motions.7 Following a hearing, the district court issued a brief order granting Defendants’ motion to dismiss and dismissing Plain-tiff ’s complaint with prejudice. The district court stated that it found Defendants’ motion to be “well taken” but did not otherwise explain the basis for its decision. The district court noted that its decision mooted Defendants’ motion for a protec-tive order.DISCUSSION8 Plaintiff contends the district court erred in granting Defendants’ motion to dis-miss because the church autonomy doctrine does not prohibit breach of contract claims and does not apply to individuals sued in their individual capacity. Plaintiff also contends the district court erred in failing to

1 Plaintiff alleges in her complaint that she was harassed “during the summer of 2011” but it is clear from the timeline of events and other documents in the record that the alleged harassment took place in 2010, not 2011. 2 Plaintiff also asserted a claim for intentional and negligent misrepresentation against the Conference, but she voluntarily dis-missed that claim.



http://www.nmcompcomm.us/Advance Opinionsconvert Defendants’ motion to dismiss into a motion for summary judgment. Because we conclude that the district court erred in dismissing Plaintiff ’s complaint, we do not consider this second issue.9 We review the district court’s grant of a motion to dismiss for failure to state a claim under Rule 1-012(B)(6) de novo. See Madrid, 2012-NMCA-071, ¶ 12. “Dismissal under Rule 1-012(B)(6) is appropriate only if the non-moving party is not en-titled to recover under any theory of the facts alleged in their complaint.” Madrid, 2012-NMCA-071, ¶ 18 (internal quotation marks and citation omitted). “The purpose of our rule is to test the law of the claim, not the facts that support it.” Id. (internal quotation marks and citation omitted).A. Church Autonomy Doctrine10 The church autonomy doctrine “prohibits civil court review of internal church disputes involving matters of faith, doctrine, church governance, and polity.” Bryce, 289 F.3d at 655. The doctrine is based on the First Amendment, which states in pertinent part that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exer-cise thereof[.]” U.S. Const. amend. I. The church autonomy doctrine protects both interests embodied in the First Amend-ment. See Celnik, 2006-NMCA-039, ¶ 11. “First, it prevents civil legal entanglement between government and religious es-tablishments by prohibiting courts from trying to resolve disputes related to eccle-siastical operations.” Id. Second, it protects the free exercise of religion “by limiting the possibility of civil interference in the workings of religious institutions[.]” Id.11 In Celnik, we recognized that the im-munity afforded by the church autonomy doctrine “is not absolute[.]” Id. ¶ 20. As the Tenth Circuit Court of Appeals explained in Bryce, the church autonomy doctrine

“does not apply to purely secular decisions, even when made by churches.” 289 F.3d at 657. Before a court concludes that the church autonomy doctrine is implicated, it must engage in the “threshold inquiry” of determining “whether the alleged misconduct is rooted in religious beliefs.” Id. (internal quotation marks and cita-tion omitted); see also Bell v. Presbyterian Church (U.S.A.), 126 F.3d 328, 331 (4th Cir. 1997) (describing threshold inquiry as determining whether the dispute is ecclesiastical or purely secular).12 Here, it does not appear that the district court considered whether Plain-tiff ’s claims are rooted in religious belief; instead, it appears that the district court simply concluded that Defendants are immune from suit as a matter of law. We do not believe that the church autonomy doctrine is so easily triggered. Whether it applies to any particular claim depends upon the specific nature of the claim and the remedy sought. We agree with the fol-lowing:

Before barring a specific cause of action, a court first must analyze each element of every claim and determine whether adjudication would require the court to choose between competing religious vi-sions, or cause interference with a church’s administrative pre-rogatives. . . . The court must next examine the remedies sought by the plaintiff and decide whether enforcement of a judgment would require excessive procedural or substantive interference with church operations.If the answer to either of those inquiries is in the affirmative, then the dispute is truly of a re-ligious nature . . . and the claim is barred from secular court

review. If, however, the dispute can be resolved by the applica-tion of purely neutral principles of law and without impermissible government intrusion . . . there is no First Amendment shield to litigation.

McKelvey v. Pierce, 800 A.2d 840, 856-57 (N.J. 2002) (emphasis, internal quotation marks, and citations omitted).B. Plaintiff ’s Breach of Contract

Claim13 We first consider whether the dis-trict court erred in concluding that the church autonomy doctrine precludes con-sideration of Plaintiff ’s breach of contract claim against the Conference. Plaintiff contends the district court erred in dis-missing this claim because it is secular in nature and can be resolved without impli-cating the First Amendment. Defendants contend this claim was properly dismissed because any question regarding Plaintiff ’s termination is a religious question in light of Plaintiff ’s ministerial position.3 We agree with Plaintiff.14 In her complaint, Plaintiff alleges that the Conference made express and implied promises to her concerning her employment, which she reasonably relied upon in accepting employment. She alleges that the Conference breached its promises to her, among them “the failure to timely notify [Plaintiff] of non-renewal and [the] failure to timely terminate her 2011-12 teaching contract year with just cause.” As pled, it appears that Plaintiff can succeed on her breach of contract claim without any religious intrusion. The district court does not need to determine whether the Conference had cause to terminate Plain-tiff ’s employment, but only whether the Conference complied with its contractual obligation with respect to the timeliness of the notice it provided to Plaintiff.4

3 We assume for purposes of this appeal that Plaintiff ’s position was a ministerial one, even though she was not the head of the congregation. See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 697, 707 (2012) (agreeing with the lower courts that “[t]he ministerial exception is not limited to the head of a religious congregation”). We note, however, that the question of whether a particular individual’s position should be considered ministerial is a question of fact, not of law, and thus should generally be decided in the context of a motion for summary judgment rather than a motion to dismiss. See id. at 700, 707-09 (refusing “to adopt a rigid formula for deciding when an employee qualifies as a minister” and concluding based on various factors that a “called teacher” was a minister for purposes of the ministerial exception). 4 We note that the record contains a letter from the Conference to Plaintiff, dated June 1, 2011, stating that the Board voted “not to retain [Plaintiff] as a teacher.” This letter appears to invoke the non-renewal provision set forth in the Southwestern Union Con-ference Education Code K-12, which states that “[t]he employing organization shall give written notice to the regular employee by May 1 [of] its intention not to renew the annual assignment agreement.” Defendants argue in their answer brief that Plaintiff ’s breach of contract claim cannot be examined without religious entanglement because the district court must determine whether Plaintiff ’s termination was for cause. This might be an appropriate argument for a motion for summary judgment, but not for a motion to dismiss. Looking at Plaintiff ’s complaint, it appears that she can succeed on her breach of contract claim without having to establish that she was terminated without cause.



http://www.nmcompcomm.us/Advance Opinions15 In terms of remedy, Plaintiff does not seek reinstatement of her teaching po-sition, but seeks only monetary damages. Defendants do not contend that entering a money judgment against the Conference would require excessive interference with church operations. Thus, under the frame-work set forth in McKelvey, Plaintiff ’s breach of contract claim does not appear to be religious in nature and thus does not implicate First Amendment concerns as a matter of law.16 Because Plaintiff ’s breach of con-tract claim can potentially be resolved without any religious entanglement, we conclude that the district court erred in dismissing it. See, e.g., Kirby v. Lexington Theological Seminary, __ S.W.3d __, 2014 WL 1512223, at *11 (Ky. 2014) (conclud-ing that ministerial employee’s breach of contract claims survived motion for sum-mary judgment because “(1) the enforce-ment of the contractual arrangement . . . does not arouse concerns of government interference in the selection of ministers, and (2) the contract does not involve any matters of ecclesiastical concern”); Second Episcopal Dist. African Methodist Episcopal Church v. Prioleau, 49 A.3d 812, 817-18 (D.C. 2012) (affirming the district court’s denial of the church’s motion to dismiss breach of contract claim and noting that plaintiff “does not claim she was wrong-fully terminated or otherwise tether her contract claim to matters of church doc-trine or governance” but “claims only that the church failed to pay her salary after acknowledging its obligation to do so”). If, at some later stage in the proceedings, it becomes apparent that Plaintiff ’s breach of contract claim in fact turns on matters of doctrinal interpretation or church gov-ernance, then summary judgment in favor of the Conference may be proper. See id.C. Plaintiff ’s Claims Against

Individual Defendants17 We next consider whether the district court erred in concluding that

the church autonomy doctrine precludes consideration of Plaintiff ’s claims against Reeve, Gillen, and Conyne for retaliatory discharge and violation of the New Mexico Human Rights Act, intentional interfer-ence with contract and civil conspiracy, and defamation and civil conspiracy. Plaintiff contends the district court erred in dismissing these claims because the church autonomy doctrine does not bar claims against individuals acting in their individual capacities and because these claims do not concern religious matters. Defendants contend these claims were properly dismissed because they arise out of Plaintiff ’s termination as a teacher and thus cannot be pursued in a judicial forum. We conclude that the district court erred in dismissing these claims because, as pled, they do not necessarily involve religious matters.18 In her complaint, Plaintiff alleges that Reeve “engaged in false statements and retaliatory conduct” against Plaintiff and “orchestrat[ed] and conspir[ed]” with Gillen, and Conyne to get Plaintiff fired. Plaintiff alleges that Reeve, Gillen, and Conyne “improperly used their position and relationships with [the Conference] . . . to cause [the Confer-ence] to wrongfully terminate [Plain-tiff ’s] employment.” And Plaintiff alleges that Reeve, Gillen, and Conyne made defamatory statements to third parties concerning Plaintiff ’s work and family.19 Defendants contend these claims were properly dismissed because they all “arise from a single factual nucleus: the termination of [Plaintiff ’s] employment as a teacher at Crestview, a ministerial posi-tion.” As we have already discussed, the immunity afforded by the church autono-my doctrine is not triggered simply by the subject matter of the complaint. Instead, the church autonomy doctrine applies only if judicial resolution of the claims would violate the First Amendment. This is a fact-specific and claim-specific inquiry,

an inquiry that the district court did not engage in here.20 We are not persuaded that the reso-lution of Plaintiff ’s claims against Reeve, Gillen, and Conyne, as pled, will neces-sarily result in religious entanglement. We thus conclude that the district court erred in dismissing them as a matter of law. See, e.g., Bilbrey v. Myers, 91 So. 3d 887, 891-92 (Fla. Dist. Ct. App. 2012) (holding that the district court erred in dismissing the plaintiff ’s claim for defamation against the pastor under the church autonomy doc-trine because the claim can be adjudicated without implicating the First Amend-ment); Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 959 (9th Cir. 2004) (holding that the district court erred in dismissing the plaintiff ’s claims for sexual harassment and retaliation because the claims might be purely secular).21 If it appears at a later stage of this case that Plaintiff ’s claims against Reeve, Gillen, and Conyne cannot be resolved without religious entanglement, then those claims may properly be dismissed. See, e.g., Jennison v. Prasifka, 391 S.W.3d 660, 668 (Tex. Crim. App. 2013) (conclud-ing that the plaintiff ’s claims for slander, tortious interference with a contractual relationship, and wrongful discharge “are inextricably intertwined with the church’s investigation of his performance as a priest and the discipline imposed” and thus sub-ject to dismissal).CONCLUSION22 For the reasons stated above, we reverse the district court’s order grant-ing Defendants’ motion to dismiss and remand for further proceedings.23 IT IS SO ORDERED.

TIMOTHY L. GARCIA, Judge

WE CONCUR:RODERICK T. KENNEDY, Chief JudgeMICHAEL D. BUSTAMANTE, Judge






STATE OF NEW MEXICO, Plaintiff-Appellee,

v.RAUL TARIN,

Defendant-AppellantDocket No. 32,650 (filed April 1, 2014)

APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTYSTEVEN L. BELL, District Judge

GARY K. KINGAttorney General

PRANAVA UPADRASHTAAssistant Attorney General

Santa Fe, New Mexicofor Appellee

RAUL TARINDexter, New Mexico

Pro Se Appellant

Opinion

Timothy L. Garcia, Judge1 Defendant Raul Tarin appeals his con-viction for speeding after a trial de novo in the district court. He argues that the State failed to present sufficient evidence that the speed limit in question was under seventy-five miles per hour pursuant to NMSA 1978, Section 66-7-301 (2002) because the State failed to produce an engineering survey and traffic investigation set forth in NMSA 1978, Section 66-7-303(A) (1996). Defendant also challenges the admission of the State’s evidence on lack of personal knowledge and hearsay grounds. We disagree and affirm Defendant’s conviction for speeding.BACKGROUND2 Defendant was stopped by a state police officer and issued a traffic citation for speeding while traveling at a speed of seventy-one miles per hour in a posted forty-five miles per hour speed limit zone. Defendant was originally convicted of speeding in the magistrate court and again after a de novo appeal to the district court. Defendant appeals his speeding conviction, challenging the sufficiency of the evidence against him based upon his construction of the applicable speeding statutes. Defendant asserts that the State was required to produce an engineering survey and traffic investigation to prove that the legally enforceable speed limit was below seventy-five miles per hour at the location in question.

DISCUSSION3 We interpret Defendant’s arguments to be a request that this Court review and interpret our speed limit statutes as well as a challenge to the sufficiency of the evidence. Defendant also challenges the admission of the officer’s testimony on personal knowledge and hearsay grounds. We begin with the analysis of our speed limit statutes.A. Establishing the Enforceable

Speed Limit4 Section 66-7-301(A) prohibits an individual from speeding by setting maximum speed limits for various kinds of roads within the State. All roads within the jurisdiction of the State, that are not within a school zone, a business district, a residential district, or a construction zone, statutorily default to a maximum speed limit of seventy-five miles per hour. Any deviation from the default speed limit must be determined on the basis of “an en-gineering survey and traffic investigation, a detailed report of which is filed with the traffic safety bureau of the state highway and transportation department[.]” Sec-tion 66-7-303(A); see also § 66-7-301(C) (permitting alteration of the speed limit in accordance with the provisions of Section 66-7-303(A)).5 Defendant was cited for exceeding the posted speed limit that had been al-tered and reduced to forty-five miles per hour pursuant to the authority granted in Section 66-7-301(C). Because the posted

speed limit had been altered from the statutory maximum, Defendant contends that it was insufficient to simply prove that he had driven in excess of the posted forty-five miles per hour speed limit. In-stead, he contends that the State was fur-ther required to produce the engineering survey and traffic investigation to prove that the speed limit alteration in question was appropriate. Accordingly, Defendant contends that the State failed to present sufficient evidence to establish the legally altered speed limit under Section 66-7-301(C) and, therefore, he was not violating the maximum speed limit under Section 66-7-301(A). Defendant’s arguments pre-suppose that (1) the methods for establish-ing the posted speed limit are a required element to establish a charge of speeding, and (2) it is the State’s burden to prove the validity of the methods for establishing the posted speed limit. Defendant’s arguments regarding the statutory interpretation of Section 66-7-301 appear to be matters of first impression before this Court.6 We first address Defendant’s overarch-ing argument that the State is required to produce an engineering survey and traf-fic investigation to prove the legality of a posted speed limit that is not specifically identified in Section 66-7-301(A). We re-view questions of statutory interpretation de novo and begin by looking at the plain language of the statute. State v. Tafoya, 2012-NMSC-030, ¶ 11, 285 P.3d 604; see also State v. Tafoya, 2010-NMSC-019, ¶ 10, 148 N.M. 391, 237 P.3d 693 (explain-ing that when interpreting a statute, the appellate court seeks to determine the Legislature’s intent by “apply[ing] the plain meaning of the statute unless the language is doubtful, ambiguous, or an adherence to the literal use of the words would lead to injustice, absurdity[,] or contradiction, in which case the statute is to be construed according to its obvious spirit or reason” (internal quotation marks and citation omitted)). Defendant’s argument on ap-peal is simple: that actual evidence of the engineering survey and traffic investiga-tion is an essential element to establish the violation of any speed limit that is posted below seventy-five miles per hour unless the roadway falls within a school zone, a business district, a residential district, or a construction zone. See § 66-7-301(A), (B).7 The plain language of Section 66-7-303(A) only requires the posting of a sign giving drivers notice of an altered speed limit and states: “[the designated] speed limit shall be authorized and effective



http://www.nmcompcomm.us/Advance Opinionswhen appropriate signs giving notice thereof are erected at that particular part of the highway[.]” No evidence, other than evidence of a posted speed limit, is required to establish the validity of a speed limit. See Dahl v. Turner, 1969-NMCA-075, ¶ 35, 80 N.M. 564, 458 P.2d 816 (explaining that, once alteration is authorized, the altered speed becomes the speed limit and notice of the altera-tion must be given by posting). Nothing in Section 66-7-301 requires the State to provide any evidence addressing how a posted speed limit was established or adopted. The statutory scheme strongly indicates that the Legislature did not in-tend that evidence of the underlying en-gineering survey and traffic investigation be a required element in nearly every case involving a speed limit violation below seventy-five miles per hour. Nothing in the statute directly imposes Defendant’s additional element for a posted speed limit violation.8 To interpret Section 66-7-301 as Defendant suggests would produce an unworkable situation and an absurd result. See State v. Javier M., 2001-NMSC-030, ¶ 46, 131 N.M. 1, 33 P.3d 1 (recognizing an unworkable situation and absurd result in the interpretation of NMSA 1978, Section 32A-2-14(C) (2009)); State v. Billington, 2009-NMCA-014, ¶ 8, 145 N.M. 526, 201 P.3d 857 (“We must . . . avoid adopt-ing a strict construction of the statutory language if it would convey an absurd or unreasonable result.”); State v. Galaz, 2003-NMCA-076, ¶ 11, 133 N.M. 794, 70 P.3d 784 (interpreting NMSA 1978, Section 30-1-12(B) (1963) narrowly to avoid an absurd result). As Defendant conceded in the district court, such an interpretation of Section 66-7-301 would require the State to present a witness and an admissible copy of the engineering survey and traffic investigation for the applicable section of roadway at nearly every trial involving a speeding infraction below seventy-five miles per hour. We conclude that such an interpretation of the statute would burden the State with needless, inefficient, and unreasonable acts that were not contem-plated by the Legislature. See State v. Young, 2004-NMSC-015, ¶¶ 26-27, 135 N.M. 458, 90 P.3d 477 (refusing to recognize an inter-pretation that would frustrate the legisla-tive purpose to maintain public order and avoid an absurd interpretation of NMSA 1978, Section 33-3-28(A) (1985)); State v. McClaugherty, 2007-NMCA-041, ¶ 38, 141 N.M. 468, 157 P.3d 33 (interpreting NMSA

1978, Section 39-1-1 (1917) to avoid inef-ficiency and dual jurisdiction that would frustrate appeals), aff ’d, 2008-NMSC-044, 144 N.M. 483, 188 P.3d 1234. As a result, we interpret the Legislature’s intent under-lying Section 66-7-301 to establish a prima facie case for a speeding violation where the State presents evidence that the speed limit was posted on a visible sign along the roadway, giving drivers proper notice of the designated speed limit, and a driver exceeds the posted speed limit.9 Defendant relies on two speed trap cases from California to support his argument that the State was required to produce an engineering survey and traffic investigation to prove that the speed limit had been altered from seventy-five miles per hour to forty-five miles per hour. See People v. Earnest, 40 Cal. Rptr. 2d 304 (App. Dep’t Super. Ct. 1995); People v. Halopoff, 131 Cal. Rptr. 531 (App. Dep’t Super. Ct. 1976). Defendant’s reliance on these speed trap cases is misplaced.10 The California Vehicle Code defines a speed trap, in part, as a prima facie speed limit that is not justified by an engineering and traffic survey. See Cal. Veh. Code §§ 40801 to 40805 (1959, amended through 2010) (speed traps). Thus, the plain language of the California Vehicle Code makes an engineering and traffic survey, or lack thereof, an essential element of a conviction based on a speed trap violation. Compare Cal. Veh. Code §§ 40801 to 40805 (speed traps), with § 66-7-301 and § 66-7-303 (speed regulations and establishment of speed zones); see also Cal. Veh. Code §§ 22351 to 22352 (1959, as amended through 2013) (speed limit violations and prima facie speed limits). No such requirement exists to establish a speeding violation in California that is not part of a speed trap scenario. See Cal. Veh. Code §§ 22351 to 22352. Neither Section 66-7-301 nor Sec-tion 66-7-303 involve a speed trap scenario that would require the State to produce the engineering survey and traffic investiga-tion from the New Mexico Highway and Transportation Department in order to prove the legality of a posted speed limit. Accordingly, the district court did not err in convicting Defendant upon the prima facie evidence that he was driving at a speed in excess of the posted speed limit.B. The Officer’s Testimony11 We now address Defendant’s chal-lenges to the sufficiency of the evidence to support his conviction. Defendant asserts that the officer’s testimony was insufficient to prove the speed limit because the officer

did not have personal knowledge that the speed limit was forty-five miles per hour. See Rule 11-602 NMRA. Additionally, De-fendant claims that the officer’s testimony was based on lack of personal knowledge and inadmissible hearsay. See Rule 11-802 NMRA.12 Our review of a sufficiency of the evidence question involves a two-step process. See State v. Apodaca, 1994-NMSC-121, ¶ 6, 118 N.M. 762, 887 P.2d 756. Initially, we view the evidence in the light most favorable to the verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict, and then we must “make a legal determination of whether the evidence viewed in this manner could justify a finding by any rational trier of fact that each element of the crime charged has been established beyond a reasonable doubt.” Id. (internal quotation marks and citation omitted). “The question is whether the [district] court’s decision is supported by substantial evidence, not whether the court could have reached a different conclusion.” In re Ernesto M., Jr., 1996-NMCA-039, ¶ 15, 121 N.M. 562, 915 P.2d 318. “The reviewing court does not weigh the evidence or substitute its judgment for that of the fact[-]finder as long as there is sufficient evidence to support the verdict.” State v. Mora, 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789, abrogated on other grounds as recognized by Kersey v. Hatch, 2010-NMSC-020, ¶ 17, 148 N.M. 381, 237 P.3d 683.13 The citing officer testified on behalf of the State and stated that he had been employed with the New Mexico State Police for five years, had patrolled this area in the past, regularly passed through the area, and had personal knowledge of the posted speed limit. The officer further testified that he was on duty on the evening in question, and as he was approaching an S-shaped curve, he observed Defendant’s vehicle coming around the curve “at a high rate of speed.” Using his radar device, the officer clocked Defendant’s speed at seventy-one miles per hour. Accord-ing to the officer, the posted speed limit was forty-five miles per hour. The officer described the three places in the area where signs were posted stating that the speed limit was forty-five miles per hour, and the officer described the signs and the geographic location of each of those signs. Based upon the officer’s testimony, the State presented sufficient evidence that the posted speed limit was forty-five miles



http://www.nmcompcomm.us/Advance Opinionsper hour and that Defendant was travel-ing well in excess of the posted limit. See State v. Dowling, 2011-NMSC-016, ¶ 20, 150 N.M. 110, 257 P.3d 930 (noting that an evidentiary review involves “deference to the resolution of factual conflicts and inferences derived therefrom, and a legal determination of whether the evidence viewed in this manner could support the conviction” (internal quotation marks and citation omitted)).14 Defendant argues that the officer’s testimony constituted inadmissible hear-say. Our appellate courts review the district court’s decision to admit evidence for an abuse of discretion. See State v. Guerra, 2012-NMSC-014, ¶ 36, 278 P.3d 1031. Without specifically articulating his hear-say claim, Defendant asserts that Rule 11-803 NMRA prohibits police officers from testifying as to hearsay. In support of this argument, Defendant relies on the public records exception, which precludes the reports of law enforcement personnel to be admitted as public records in criminal cases. See Rule 11-803(8)(a)(ii) (stating that “[t]he following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a wit-ness . . . [a] record or statement of a public office if . . . it sets out . . . a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel” (emphasis added)). We are not persuaded that Rule 11-803(8)(a)(ii) applies in this case because there is no evidence that the State attempted to offer the police officer’s

report into evidence as a public record. To the contrary, the officer testified that he personally observed Defendant travel-ing at seventy-one miles per hour in an area where there were three posted speed limit signs stating that the speed limit was forty-five miles per hour. As a result, the district court did not abuse its discretion by admitting the officer’s testimony.15 Defendant also argues that the of-ficer lacked personal knowledge because he did not know who posted the speed limit signs, and this lack of knowledge constitutes hearsay. See Rules 11-602 (de-fining personal knowledge) and 11-801(C) NMRA (defining hearsay). We disagree. To the extent that Defendant is also arguing that the hearsay rule would not allow the officer to rely on the speed limit signs that stated that the speed limit was forty-five miles per hour, Defendant failed to fully develop this argument or establish how it was preserved below. See Garcia ex rel. Garcia v. La Farge, 1995-NMSC-019, ¶ 27, 119 N.M. 532, 893 P.2d 428 (“To preserve an issue for appeal, it must appear that a ruling or decision by the district court was fairly invoked.” (internal quotation marks and citation omitted)). Because this Court does not review unclear or un-developed arguments, we will not address this hearsay argument further. See State v. Fuentes, 2010-NMCA-027, ¶ 29, 147 N.M. 761, 228 P.3d 1181; see also Elane Photog-raphy v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 40 (“To rule on an inadequately briefed issue, [an appellate court] would have to develop the arguments itself, ef-

fectively performing the parties’ work for them. . . . It is of no benefit either to the parties or to future litigants for this Court to promulgate case law based on our own speculation rather than the parties’ carefully considered arguments.”). For the foregoing reasons, we conclude that there were no hearsay violations arising from the citing officer’s testimony that was based upon his personal observations and personal knowledge of the evidence.CONCLUSION16 Viewing the evidence in the light most favorable to the district court’s ver-dict, we conclude that there was sufficient evidence to support the district court’s conclusion that Defendant was driving seventy-one miles per hour in a posted forty-five miles per hour speed limit zone. Because the State was not required to present an engineering survey and traffic investigation as a prima facie element in the charge of speeding, the posted speed limit of forty-five miles per hour was sufficient to establish the statutory speed limit under Section 66-7-301. Finally, the district court did not abuse its discretion by admitting the officer’s testimony about the posted speed limit and the citation is-sued to Defendant. We affirm Defendant’s conviction for speeding.17 IT IS SO ORDERED.

TIMOTHY L. GARCIA, Judge

WE CONCUR:JONATHAN B. SUTIN, JudgeLINDA M. VANZI, Judge



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ParalegalWell-established personal injury law firm in the far northeast heights is looking for a paralegal with significant experience in medical malpractice and auto accident cases. Very positive working environment with experience lawyers and staff. Salary depen-dent upon experience. Health insurance and 401(k) available. Send resume to [email protected]

Medical Malpractice ParalegalKeleher & McLeod seeks a full-time, experi-enced Medical Malpractice Paralegal. Must have current experience which involves procurement, analysis and the ability to sum-marize case-related documents and, have sub-stantive knowledge of the procedures relating to complex litigation matters and E-Discovery procedures. In addition, candidate must have trial experience and the ability to manage a case in its entirety. Successful candidate will take ownership of projects and complete as-signments on time. We offer a professional work environment with full benefits. E-mail résumés to [email protected] or fax to 346-1370, attn: Patricia Sesma.

Attorney SupervisorThe Third Judicial District Court in Las Cruces is accepting applications for a full-time classi-fied Attorney Supervisor. Requirements include admission to the NM State Bar plus a minimum of five years experience in the practice of appli-cable law, of which two years must have been as a supervisor. Under administrative direction, as assigned by a Judge, duties include but are not limited to: supervise two to four Associate Attorneys and support staff; provide legal ad-vice and opinions; review cases; perform legal research, evaluation, and analysis; write and make recommendations concerning the work of the Court. Proof of education and admission with NM State Bar required. Please refer to http://www.nmcourts.gov/jobs/jobselectpage.php for application/resume procedure. For questions contact Briggett Becerra, HR Ad-ministrator Sr. at 575-528-8310. Deadline for submission is: October 8, 2014.

ParalegalStiff, Keith & Garcia, LLC, a successful insurance defense firm, seeks sharp, en-ergetic paralegal. Must be a self-starter, detail-oriented, organized, and have excellent communication skills. A four-year degree or paralegal degree, and insurance defense and/or personal injury experience required. Bi-lingual in Spanish a plus. Please e-mail your resume and list of references to [email protected].

District Public Defenders: 12th Judicial DistrictThe Law Offices of the New Mexico Public Defender is recruiting applicants for the po-sition of District Public Defender for the Al-amogordo District. This is an exempt position within a state agency which is overseen by an independent commission and reports direct-ly to the Deputy Chief Public Defender. The District Public Defender position is a high senior level trial and management position within the agency and will be responsible for all department operations in their assigned judicial districts. Qualified applicants must be licensed to practice law in New Mexico or admitted to the New Mexico State Bar Asso-ciation within one year of appointment, have a minimum of eight years criminal litigation or appellate experience at the misdemeanor and felony level. Additionally applicants must have a minimum of three years of experience managing a law office to include attorney and non-attorney staff. Salary range is from $53,557.92 to $ 132,557.57 annually and will depend on experience. Please direct ques-tions to Barbara Auten, HR Director, at (505) 500-6486. Application deadline is 12:00 p.m. October 3, 2014. Please fax resume, letter of interest, five professional references with contact information and a writing sample to (505) 476-0357, or e-mail at [email protected]. The State of New Mexico is an equal opportunity employer.

Deputy Chief Public DefenderThe Law Offices of the New Mexico Public Defender is recruiting applicants for the position of Deputy Chief Public Defender. This is an exempt position within a state agency which is overseen by an independent commission and reports directly to the Chief Public Defender. The Deputy Chief Public Defender is an executive management posi-tion within the agency and is responsible for agency operations throughout the state which will require periodic overnight travel. Quali-fied applicants must be licensed to practice law in New Mexico or admitted to the New Mexico State Bar Association within one year of appointment, have a minimum of ten years criminal litigation or appellate experience at the misdemeanor and felony level. Ad-ditionally applicants must have a minimum of three years of experience managing a law office to include supervising attorney and non-attorney staff which includes experience managing statewide or regional programs. Salary range is from $59,051.20 to $146,150.58 depending on experience. Please direct ques-tions to Barbara Auten, HR Director, at (505) 500-6486. Application deadline is 12:00 p.m. October 3, 2014. Please fax resume, letter of interest, five professional references with contact information and a writing sample to (505) 476-0357, or e-mail at [email protected]. The State of New Mexico is an equal opportunity employer.

AttorneyLittle, Bradley & Nesbitt, PA, is seeking at-torney to handle residential foreclosure cases, including litigation. No billable hours re-quirement. Prior foreclosure, real estate title, &/or litigation experience required. Send cover letter, resume, salary requirements & references to [email protected], fax to 254-4722 or mail to PO Box 3509, Alb 87190.

AttorneysAttorneys needed, 1 requires litigation exp. for court hearings &/or trials, mediations, discovery, mentoring newer attorneys...2nd attorney, 0-3 yrs exp. (exp. a plus). Must be able to multi-task in a high volume, fast-paced, reputable, rapidly growing law firm rep. numer-ous nationwide banking clients. Foreclosure & bankruptcy exp. a plus. Nice office in the Journal Center area & great training program – be a part of our new staff addition & building expansion! Join our successful & growing firm! Good benefits (hol, vac, sick, health, dent, retir. & more). Submit in conf. cover letter, resume, sal hist & req to [email protected]

Entry Level Associate Attorney The Deschamps Law Firm, LLC, in Socorro, NM has an opening for an entry level associate at-torney. Opportunity to earn proprietary interest in established firm within the Seventh Judicial District. Must relocate to Socorro area. Please submit resume to shiloh@deschampslawfirm. com or to P.O. Drawer 389, Socorro, NM 87801.

Pueblo of Laguna - Attorney The Pueblo of Laguna is seeking applications from individuals interested in an ATTOR-NEY position. The individual will serve as a legal advisor, representative and counselor to the Pueblo of Laguna. Assists in legal litiga-tion or disputes to protect tribal sovereignty. Graduate of law school with minimum of 7 years of relevant work experience in three of the following: federal Indian law; commer-cial transactions; leasing; construction law; experience performing complex litigation for tribal governments; and code development required. Licensed with State of NM or within one year of employment. For additional de-tails about the Pueblo and the position, go to www.lagunapueblo-nsn.gov and click on Em-ployment Opportunities or call the Pueblo’s Human Resources Office at (505) 552-6654.

Associate AttorneyVigil Law Firm, P.A., an established AV rated Law Firm in Albuquerque, NM, seeks an As-sociate Attorney with 0-5 years experience who is enthusiastic, personable, and possesses strong research and writing skills for work in Medical Malpractice, Products Liability, and General Negligence Litigation for busy Plaintiffs’ practice. Please email resume, references, and a writing sample to [email protected].

http://www.nmcourts.gov/jobs/jobselectpage




http://www.lagunapueblo-nsn.gov


Briefs, Research, Appeals--Leave the writing to me. Experienced, effec-tive, reasonable. [email protected] (505) 281 6797

Services

Trial Technician Experienced, certified court technician prepares and displays exhibits at trial. www.legaleyenm.com, Bill Werntz (505) 264-2434

Downtown OfficesOne or two offices available for rent, includ-ing secretarial areas, at 2040 4th St. NW (I-40 & 4th St.), ABQ. Rent includes receptionist, use of conference rooms, high speed internet, phone system, free parking for staff and cli-ents, use of copy machine, fax machine and employee lounge. Contact Jerry or George at 505-243-6721 or [email protected].

Office Space

Office Space1, 2, or 3 offices available; plus dedicated workstation/file space; plus shared space: two conference rooms, restrooms, break room, waiting areas. Services include janitorial, reception, and all utilities, including phone and internet. Dedicated domain space avail-able on server, copier available. Off street parking. $550/mo. per office. Four other law firms in building. Near UNM Law School, quick freeway access to downtown. Call Shelly at 265-6491.

Furnished Office Spaces Available:Up-scale, full-service Executive offices available! All inclusive amenities: Furnished offices, Conference room, Receptionist, In-ternet, Phone, and Kitchen. Monthly rent, including support services ranging from $800-$1,200 a month. Convenient location with a five minute drive to the Courthouses.Contact Laurie at Albuquerque Business Law at (505) 246-2878 if interested!

Research and Writing AssignmentsLicensed attorney with 7 years appellate court experience is available for research and writ-ing assignments, including motions, appel-late briefs, issue research and memoranda of law. Contact Lorien House at 505-715-6566 or [email protected].

Qualified Bookkeeper Available [email protected] 505-307-6649

Needed: Contract Paralegal for Mortgage ForeclosuresWe are looking for a contract paralegal with extensive experience in foreclosure matters to work on a handful of foreclosure files and see them through to completion on an hourly basis. Please fax resume with references to Office Manager at 505-842-8200.

Legal Assistant/ReceptionistPosition at Walk-In Wills, an estate planning law firm. Do you have a friendly, pleasant demeanor and the ability to communicate in a professional manner? This position is responsible for greeting new clients, answer-ing multi-line phones, maintaining client satisfaction, computer/word processing, filing and general office skills. Experience preferred in estate planning but will train the right applicant. Computer skills testing before hire. Full-time position, M-F, 9-5 & paid time off. E-mail cover letter and resume to [email protected].

Legal AssistantAlbuquerque law firm seeks experienced legal assistant. Excellent clerical, organizational, computer, verbal and writing skills required. Ability to multitask in busy office, support attorneys in litigation. Must be proficient in court processes, filing, calendaring, drafting, pleading, secretarial assistance and front desk duties. Competitive salary and benefits. Send resume to [email protected] or fax resume to (505) 764-8585.

Legal Secretary/AssistantDo you have 3 or more years experience as a legal secretary? Are you familiar with civil litigation, court rules and filing procedures? Are your clerical, organization, computer and word processing skills exceptional? Then send your resume to this well respected, highly pro-ductive law firm at [email protected]

ParalegalThe Santa Fe office of Hinkle, Hensley, Shanor & Martin seeks a paralegal for the practice areas of environmental, water, natural resources, real property, public utility and administrative law. Candidates should have a strong academic background, excellent re-search skills and the ability to work indepen-dently. Competitive salary and benefits. All inquires kept confidential. Santa Fe resident preferred. Please email resume to: [email protected]

New Space: Best Location “Build Out” Yourself1469SF professional office space. Northeast views. Can develop to Tenant’s requirements. Prime Uptown location, high visibility, con-venient access to I-40; Bank of America, com-panion restaurants on-site: Shopping, exten-sive landscaping, ample parking, full-service lease. 6% commission to leasing office. Com-cast Business Class available at Uptown Square (includes High-Speed Internet, Telephone and Television). Also available May 2015 -1474SF and 2278SF. Call for more information. John Whisenant or Ron Nelson 883-9662

For Rent: Office Space1 office, with or without secretarial station, at 500 Tijeras Ave. NW. Downtown, convenient to all courts, city and county offices. Offices are shared with 7-8 other lawyers. Office only rent is $750/mo; Office and secretarial station rent is $1000/mo. Includes reception, long distance telephone, use of two confer-ence rooms, and on-site parking for staff and clients. Contact Reina at 505-842-1905

One or Two Offices AvailableOne or two offices available, with one or two adjacent work areas for support staff. One block from Metro, District and Fed-eral Courts. Access to conference room and kitchen. Larger office $750.00, smaller office $600.00, per month, including one work area for each office. Utilities, internet, parking and copier negotiable. Contact 505-245-7200 for details.

Walking Distance to CourtsOcho Building, 423 6th St. NW. Three single offices available, $400.00, $550.00, $600.00. Includes parking, all utilities (except phone line), general receptionist, janitorial, high-speed internet, VOIP phone system, fax and copier available, two con-ference rooms, security system, and large waiting area all included. Contact Marlene, 247-3900 [email protected]

620 Roma N.W.620 ROMA N.W., located within two blocks of the three downtown courts. Rent includes utilities (except phones), fax, internet, janito-rial service, copy machine, etc. All of this is included in the rent of $550 per month. Up to three offices are available to choose from and you’ll also have access to five confer-ence rooms, a large waiting area, access to full library, receptionist to greet clients and take calls. Call 243-3751 for appointment to inspect.


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september 24, 2014 • volume 53, no. 39 · 4 bar bulletin - september 24, 2014 - volume 53, no. 39...

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