Inside This Issue. You re Invited! Friday, February 27 4 p.m. February 25, 2015 Volume 54, No. 8

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1 February 25, 2015 Volume 54, No. 8 Inside This Issue Table of Contents... 5 Call for Nominations: Annual Public Lawyer Award... 7 Update Your Contact Information for the Bench & Bar Directory... 8 Clerk s Certificates...14 From the New Mexico Court of Appeals 2015-NMCA-005, No. 31,883: Lujan v. New Mexico Department of Transportation NMCA-006, No. 32,988: Brown v. Kellogg NMCA-007, No. 31,787: State v. Green...26 Color Prints 1 by Randall V. Biggers (see page 5) You re Invited! Friday, February 27 4 p.m.

2 CLE Planner March 6 March 13 The 30th Annual Bankruptcy Year in Review Seminar 6.0 G 1.0 EP Friday, March 6, :30 a.m.-5 p.m. State Bar Center Co-sponsor: Bankruptcy Law Section Standard fee: $275 Bankruptcy Law Section members, government, legal service attorneys, and Paralegal Division members: $245 Webcast fee: $309 The seminar focuses on developments in case law on bankruptcy issues in 2014, both nationally and locally, with special emphasis on decisions by the U.S. Supreme Court, 10th Circuit Court of Appeals, 10th Circuit B.A.P. and U.S. Bankruptcy Court for the District of New Mexico. Also included are presentations by the Bankruptcy Judges for the District of New Mexico, the Assistant U.S. Trustee for the District of New Mexico, the Clerk of Court, and an ethics presentation Ethicspalooza also available via LIVE WEBCAST EP also available via LIVE WEBCAST This series of ethics courses taught by members of the Disciplinary Board of the New Mexico Supreme Court, Office of Disciplinary Counsel will provide concise, informative, practical and useful information for the ethical practice of law. Take one, two, three, four, five or all six. Friday, March 13, 2015 State Bar Center, Albuquerque Registration will begin half an hour prior to each course. 9 a.m. Ethically Managing Your Practice 1.0 EP Standard Fee: $38 Webcast Fee: $46 Christine Long, Esq. From how to confirm that new representation to how to orderly terminate representation and everything in between, this session will cover the daily challenges faced by lawyers trying to practice law and run a business. 10 a.m. Break 10:15 a.m. All Those Fees 1.0 EP Standard Fee: $38 Webcast Fee: $46 Jane Gagne, Esq. This session will discuss what is and is not a reasonable attorneys fee, whether you can charge flat fees, the prohibition against non-refundable fees, fee-splitting and contingency fee agreements. 11:15 a.m. Break 11:30 a.m. Proper Trust Accounting 1.0 EP Standard Fee: $38 Webcast Fee: $46 Ann Taylor, Esq. This hands-on session is designed to give participants a chance to learn about and demonstrate the proper management of a trust account, including ledger keeping and reconciliation and a discussion on the dos and don ts of trust accounts. This session will also discuss the proper way to handle clients non-cash property. 12:30 p.m. Lunch (provided at the State Bar Center) 1:30 p.m. Conflicts of Interest 1.0 EP Standard Fee: $38 Webcast Fee: $46 William Slease, Esq., Chief Disciplinary Counsel How to recognize them, how to avoid them and what to do when you wake up in the middle of one; this session will cover the common conflicts that arise in practice. 2:30 p.m. Break 2:45 p.m. The Ethics of Social Media Use 1.0 EP Standard Fee: $38 Webcast Fee: $46 William Slease, Esq. Facebook, Twitter and G-Chats, oh my! In this session learn about the growing need to use social media in your law practice and the ethical issues associated with that use. 3:45 p.m. Break 4 p.m. Civility and Professionalism 1.0 EP Standard Fee: $38 Webcast Fee: $46 William Slease, Esq. How do and should lawyers treat one another, the Courts, their opposing parties and their own clients? This session will discuss a growing concern about incivility and unprofessionalism in the profession, whether and when such behavior violates the Rules of Professional Conduct, and what can and is being done to address the issues. 5 p.m. Adjournment Register online at or call. CENTER FOR LEGAL EDUCATION 2 Bar Bulletin - February 25, Volume 54, No. 8

3 BRISTOL FAMILY LAW CELEBRATING 3 YEARS James Bristol is a Board Certified Family Law Specialist, has an AV Preeminent rating with Martindale-Hubbel, and is a Fellow in the American Academy of Matrimonial Lawyers. Looking forward to serving our Santa Fe and Northern New Mexico clients now and in the years to come. Bristol Family Law, LLC 339 W. Manhattan Ave. Santa Fe, NM Phone: Fax: bristolfamilylawfirm.com Ryan Heffernan Bar Bulletin - February 25, Volume 54, No. 8 3

4 You re Invited! The State Bar is proud of the tremendous dedication and service that our membership has given to the legal profession and the public. We hope you will join us for this important celebration. Chief Justice Barbara J. Vigil will address attendees. Martha Chicoski, President, will honor attorneys celebrating 25 and 50 years of service. What: State Bar of New Mexico s 129th Birthday Where: State Bar Center, 5121 Masthead NE, Albuquerque, NM When: 4 p.m., February 27 For more information or to R.S.V.P., contact Evann Kleinschmidt, 4 Bar Bulletin - February 25, Volume 54, No. 8

5 Officers, Board of Bar Commissioners Mary Martha Chicoski, President J. Brent Moore, President-Elect Scotty A. Holloman, Vice President Dustin K. Hunter, Secretary-Treasurer Erika E. Anderson, Immediate Past President Board of Editors Jamshid Askar Bruce Herr Nicole L. Banks Maureen S. Moore Alex Cotoia Andrew Sefzik Kristin J. Dalton Mark Standridge Curtis Hayes Carolyn Wolf State Bar Staff Executive Director Joe Conte Managing Editor D.D. Wolohan Communications Coordinator Evann Kleinschmidt Graphic Designer Julie Schwartz Account Executive Marcia C. Ulibarri Digital Print Center Manager Brian Sanchez Assistant Michael Rizzo 2015, State Bar of New Mexico. No part of this publication 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. The Bar Bulletin (ISSN ) is published weekly by the State Bar of New Mexico, 5121 Masthead NE, Albuquerque, NM Periodicals postage paid at Albuquerque, NM. Postmaster: Send address changes to Bar Bulletin, PO Box 92860, Albuquerque, NM Fax: February 25, 2015, Vol. 54, No. 8 Table of Contents Notices...6 Legal Education Calendar...9 Writs of Certiorari Court of Appeals Opinions List Clerk s Certificates Recent Rule-Making Activity Opinions From the New Mexico Court of Appeals 2015-NMCA-005, No. 31,883: Lujan v. New Mexico Department of Transportation NMCA-006, No. 32,988: Brown v. Kellogg NMCA-007, No. 31,787: State v. Green Advertising February Meetings 26 Natural Resources, Energy, and Environmental Section BOD, Noon, via teleconference 27 Immigration Law Section BOD, Noon, via teleconference March 3 Bankruptcy Law Section BOD, Noon, U.S. Bankruptcy Court 3 Health Law Section BOD, 7 a.m., via teleconference 4 Employment and Labor Law Section BOD, Noon, State Bar Center 11 Children s Law Section BOD, Noon, Juvenile Justice Center 11 Taxation Section BOD, 11 a.m., via teleconference 12 Business Law Section BOD, 4 p.m., via teleconference State Bar Workshops February 25 Consumer Debt/Bankruptcy Workshop 6 p.m., State Bar Center 26 Consumer Debt/Bankruptcy Workshop 5:30 p.m., The Law Office of Kenneth Egan, Las Cruces March 4 Divorce Options Workshop 6 p.m., State Bar Center 4 Civil Legal Fair 10 a.m. 1 p.m., Second Judicial District Court, Third Floor Conference Room, Albuquerque 6 Civil Legal Fair 10 a.m. 1 p.m., First Judicial District Court, First Floor Jury Room, Santa Fe 25 Consumer Debt/Bankruptcy Workshop 6 p.m., State Bar Center 28 Consumer Debt/Bankruptcy Workshop 9 a.m., The Law Office of Kenneth Egan, Las Cruces Cover Artist: Randall V. Biggers was born in Roswell. He is a returned Peace Corps volunteer (Afghanistan 74 76) who served for 21 years in the foreign service. He has been actively painting for the past 10 years. The majority of his work is non-objective. In addition to painting with acrylics, Biggers makes collages and shoots photography. To schedule a private viewing, or call Bar Bulletin - February 25, Volume 54, No. 8 5

6 Notices Court News Supreme Court of New Mexico Notice of Vacancies on Supreme Court Committees The Supreme Court of New Mexico is seeking applications to fill vacancies on the following Supreme Court committees: Children s Court Rules Committee: One vacancy for a newly created position designated at this time for a children s court attorney who represents the state in delinquency and youthful offender proceedings Domestic Relations Rules Committee (one vacancy) Joint Committee on Rules of Procedure (one vacancy) Minimum Continuing Legal Education Board (one vacancy) Unless otherwise noted, all licensed New Mexico attorneys are eligible to apply. Anyone interested in volunteering to serve on one or more of these committees may apply by sending a letter of interest and résumé by mail to Joey D. Moya, Chief Clerk, PO Box 848, Santa Fe, NM , by fax to , or by to The letter of interest should describe the applicant s qualifications and should list committees in order of preference if applying to more than one committee. The deadline for applications is Feb th Judicial District Court Notice of Mass Reassignment to Judge Dalley Under the authority of Rule NMRA, the Chief Judge of the 11th Judicial District Court has directed a mass reassignment of all family, probate/mental health cases, with the exception of abuse and neglect cases, effective Feb. 2 from Division VIII to Division I, Bradford J. Dalley, presiding. Pursuant to Rule NMRA, parties who have not yet exercised a peremptory excusal in a case being reassigned in this mass reassignment will have 10 business days from Feb. 25 to excuse Judge Dalley. Magistrate Mediation Program Mediators Needed: Advanced Training Offered A 10-hour advanced mediation training and continuing professional development is being offered to recruit mediators for the Professionalism Tip With respect to opposing parties and their counsel: I will consult with opposing counsel before scheduling depositions and meetings or before rescheduling hearings. Bernalillo, Los Lunas, and Belen Magistrate Courts. A 40-hour mediation training in the facilitative model is a prerequisite. The training by the ADR Bureau, State Risk Management, qualifies. Mediation experience is preferred and facilitative mediation will be used. This initiative s goal is to increase mediation in the tri-county area of Sandoval, Bernalillo, and Valencia counties by building upon the experience and expertise of existing Magistrate Court Programs, the Metropolitan Court Mediation Program and area mediators. Opportunities for mediators will include gaining mediation experience and opportunities for on-going professional development. The training will include back to basics, advanced techniques, court procedure, and new rules regarding court-connected mediation and best practices. There will be other opportunities, including a 40-hour basic training. Magistrate Mediation Programs are planned throughout the state. By law, Magistrate Court mediators must be volunteers. This training does not include MCLE credit, which will be explored for future trainings. There is no fee for the training. In return and to complete the training experience, the participants will mediate cases in the Bernalillo, Los Lunas, and Belen Magistrate Courts. The requirement is 12 mediations of approximately two hours per mediation. Space is limited. The trainings are 8:30 a.m. to 5 p.m. on Friday, March 20, and 9 a.m. to noon on Saturday, March 21, at the State Bar Center. Application deadline is 5 p.m., February 27. Applicants will be notified of application results on March 6. To apply or for information, contact David Levin, Mediation Project Manager, Magistrate Mediation Program, 2905 Rodeo Park Dr. East, Building 5, Santa Fe NM 87505, nmcourts.gov, phone or fax U.S. District Court for the District of New Mexico Attorney Federal Bar Dues With the concurrence of the Article III judges of the U.S. District Court for the District of New Mexico, the Federal Bar dues have been set at $25 for Bar dues may be paid online via CM/ ECF. For more information regarding paying Bar dues, visit us. State Bar News Attorney Support Groups March 2, 5:30 p.m. First United Methodist Church, 4th and Lead SW, Albuquerque (The group meets the first Monday of the month.) March 9, 5:30 p.m. UNM School of Law, 1117 Stanford NE, Albuquerque, Room 1119 (The group meets the second Monday of the month.) March 16, 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 Hilary Noskin, or Bill Stratvert, Appellate Practice Section Brown Bag Lunch with Judge Michael D. Bustamante The Appellate Practice Section and the Young Lawyers Division invite members of the legal community to a noon lunch discussion with Appellate Court Judge Michael D. Bustamante on March 13 at the State Bar Center. These brown bag lunches in an informal setting are beneficial to lawyers and judges alike. Space is limited, so R.S.V.P. to Dolph Barnhouse at by March 12. Judge Bustamante, a native New Mexican, graduated from the University of New Mexico in 1971 with a degree in Economics and American Studies. He received his law degree from UNM in 1974, and has been serving the New Mexico Court of Appeals as a judge since his election in December Before that, he was in private practice with Ortega and Snead, P.A., and its predecessor from 1974 until 1990, when he went into solo practice. His work as an attorney included a broad range of civil matters. He has served on the 6 Bar Bulletin - February 25, Volume 54, No. 8

7 Board of Bar Examiners; the Disciplinary Board; the Bench, Bar Relations Committee of the Supreme Court; and the Judicial Information Systems Council. Public Law Section Accepting Nominations for Annual Public Lawyer Award The Public Law Section is accepting nominations for the Public Lawyer of the Year Award, which will be presented at the state capitol on May 1. Visit /Nmstatebar/About_Us/ Public_Law/Lawyer_of_the_Year_ Awards.aspx to view previous recipients and award criteria. Nominations are due no later than 5 p.m. on March 2. Send nominations to James Martin, 105 Pine St., Santa Fe, NM 87501, or The selection committee will consider all nominated candidates and may nominate candidates on its own. Young Lawyers Division Board Vacancies The YLD Board is seeking two regional directors for its board: Region 1, representing San Juan and McKinley counties; and Region 3, representing the greater Roswell area/southeastern New Mexico. Among the duties include attending board meetings by phone or in person, and attending and organizing YLD events in your community. Principal place of practice must be in the region applicants would represent. Residency in the region is not required. Send letters of interest and résumé to YLD Chair Ken Stalter, by March 2. For more information, contact D.D. Wolohan, UNM The Federalist Society Right To Work Event The Federalist Society and Business Law Society, student organizations at the UNM School of Law, present Right to Work Laws: Compulsory Unionism and Collective Bargaining featuring Mark Mix from the National Right to Work Legal Defense Foundation and Fred Mowrer, an attorney with Sanchez, Mowrer & Desiderio PC. The event will be held 11:50 a.m. 1 p.m., March 4, at the UNM School of Law, Room For more information, contact Curtis Vernon, Law Library Hours Through May 9 Building & Circulation Monday Thursday Friday Saturday Sunday Reference Monday Friday Librarian on call Saturday Sunday 8 a.m. 10 p.m. 8 a.m. 6 p.m. 8 a.m. 5 p.m. Noon 8 p.m. 9 a.m. 6 p.m. 3 6 p.m. Closed Women s Law Caucus 2015 Justice Mary Walters Award Dinner Join the Women s Law Caucus to honor Heidi Nesbitt of the American Indian Law Center and Hon. Anne Kass for the efforts they have made for New Mexico. The Justice Mary Walters Award dinner will be held at 6 p.m., Feb. 27, at the University of New Mexico School of Law. Tickets are $55 per person or $400 for a table of eight. To purchase tickets or for sponsorship information, visit unm.edu/students/organizations/wlc/. Make checks payable to the Women s Law Caucus and send to 1117 Stanford Drive NE, Albuquerque, NM For more information, contact Donna Baslee, or Elizabeth Reitzel, Other Bars Albuquerque Bar Association Membership Luncheon Bill Slease will present Disciplinary Board Issues and Trends at the Albuquerque Bar Association s membership luncheon at noon, March 3, at the Embassy Suites Hotel. After the luncheon there will be a CLE Top 10 Reasons Lawyers are Sued (2.0 G) from 1:15 3:15 p.m. For more information or to register, visit www. abqbar.org. Albuquerque Lawyers Club March Lunch Meeting The Albuquerque Lawyers Club invites members of the legal community to its monthly lunch meeting. The next meeting will be held on at noon, March 4, at Seasons Restaurant in Albuquerque. U.S. District Court Judge James Browning will be the featured speaker. Cost: Free to members, $30 non-members. For more information, contact Yasmin Dennig at or Bridge the Gap Mentorship Program This mandatory program approved by the N.M. Supreme Court offers new lawyers a highly experienced attorney member to teach real-world aspects of practice. Both earn a full year of CLE credits. For more information, call CLE Opportunity: Practicing Transformative Law The Albuquerque Lawyers Club and the Women s Bar Association present a CLE Is It Just About the Money? Practicing Transformative Law (3.0 EP, pending MCLE approval) from 11 a.m. 2:30 p.m., March 13, at Seasons Rotisserie & Grill in Albuquerque. Speakers include Randi McGinn, author of Changing Laws, Saving Lives, Justice Edward L. Chávez, Yasmin Dennig and Rochelle Lari. The cost of the program is $125 (includes lunch). Participants may purchase the book Changing Laws, Saving Lives at a $10 discount upon registration. Members of either organization will receive a $25 discount. Space is limited so registration is required. Barbara Koenig at to receive a registration form and for more information. New Mexico Lawyers and Judges Assistance Program Help and support are only a phone call away. 24-Hour Helpline Attorneys/Law Students Judges /JLAP/JLAP.html Bar Bulletin - February 25, Volume 54, No. 8 7

8 New Mexico Criminal Defense Lawyers Association Trial Skills College Need to brush up on your trial tactics? Several of New Mexico s top trial lawyers have teamed up again this year for the New Mexico Criminal Defense Lawyers Association s Trial Skills College on March in Albuquerque. A two-day course of lectures, small group practice and video review aspects of a trial from voir dire to closing statements. Whether you re a new lawyer, or need to brush up on your expertise, everyone is bound to learn something new. The CLE provides a total of 14.5 general CLE credits. There are only 36 seats available, so don t wait to register. Visit for more details. New Mexico Hispanic Bar Association Santa Fe Meet and Greet and CLE Join the New Mexico Hispanic Bar Association for a meet and greet and ethics CLE on Feb. 25 in Santa Fe. Supreme Court Justice Edward L. Chávez and Court of Appeals Judge Timothy L. Garcia will present Tips for Achieving an Ethical and Professional Practice, (1.0 EP) at 4 p.m. at the Inn of the Governors. A meet-andgreet event will follow from 5 7 p.m. at the Del Charro Saloon with hosted appetizers. For more information or to register, visit Other News New Mexico Foundation for Open Government Save the Date! CLE Opportunity Registration is open for the New Mexico Foundation for Open Government s May 1 seminar on public records and open meetings laws (5.0 G, 1.0 EP, pending MCLE approval). The program will be held at the Albuquerque Journal Building in Journal Center. For more information, visit New-Mexico-Foundation-for-Open- Government-CLE-May-1.html?soid= &aid=SLB8YrkY_j0. Rocky Mountain Mineral Law Foundation Enhanced Oil Recovery Institute The State Bar is co-sponsoring the Special Institute on Enhanced Oil Recovery: Legal Framework for Sustainable Management of Mature Oil Fields, May 7 8 in San Antonio, Texas, with the Rocky Mountain Mineral Law Foundation. State Bar members may register for this program at the discounted rate. For a detailed program brochure, online registration and information about discounted hotel rooms at the Westin Riverwalk Hotel, visit org. Comprehensive course materials will be provided to all registrants Bench & Bar Directory Update Your Contact Information by March 27 To verify your current information: Visit. Click on Find an Attorney and search by name. To submit changes: Online: Visit > for Members > Change of Address Mail: Address Changes, PO Box 92860, Albuquerque, NM Fax: Publication is not guaranteed for information submitted after March Bar Bulletin - February 25, Volume 54, No. 8

9 Legal Education March 3 Estate Planning for Farms and Ranches 1.0 G National Teleseminar 5 Spotting & Preventing Fraud in Real Estate Transactions 1.0 G National Teleseminar 6 The 30th Annual Bankruptcy Year in Review Seminar 6.0 G, 1.0 EP Live Seminar and Webcast 10 Oil and Gas: From the Basics to an In-Depth Study (2014) 6.0 G, 1.0 EP Video Replay Employment and Labor Law Institute 4.5 G, 1.5 EP Video Replay 10 New Mexico Constitution Current Issues (2014) 2.0 G Video Replay 10 Don t Call Saul: Breaking Bad Ethics (2014 Annual Meeting) 1.0 EP Video Replay 10 Ethics and Professionalism: Advice from the Bench and Bar (2014) 2.0 EP Video Replay 10 Reviewing and Drafting IT Agreements 1.0 G National Teleseminar 12 Ethical Issues When Representing the Elderly 1.0 EP National Teleseminar Ethicspalooza: Ethically Managing Your Practice 1.0 EP Live Seminar and Webcast Ethicspalooza: All Those Fees 1.0 EP Live Seminar and Webcast Ethicspalooza: Proper Trust Accounting 1.0 EP Live Seminar and Webcast Ethicspalooza: Conflicts of Interest 1.0 EP Live Seminar and Webcast Ethicspalooza: The Ethics of Social Media Use 1.0 EP Live Seminar and Webcast Ethicspalooza: Civility and Professionalism 1.0 EP Live Seminar and Webcast Fundamentals of Securities Law, Parts G National Teleseminar 20 The Impact of the Legal System on People of Color 5.5 G, 1.0 EP Live Seminar and Webcast 23 Ethics for Transactional Lawyers 1.0 EP National Teleseminar 24 Internet Investigative/Legal Research on a Budget and Legal Tech Tips (2014) 6.0 G Video Replay 24 Medical Malpractice Review Before the New Mexico Medical Review Commission (2014) 2.0 G, 3.0 EP Video Replay Bar Bulletin - February 25, Volume 54, No. 8 9

10 Legal Education March 24 Nonprofit Corporations Compliance (2014) 3.5 G Video Replay 24 Mock Meeting of the Ethics Advisory Committee (2014) 2.0 EP Video Replay Sub-leasing & Assignments, Parts G National Teleseminar Solo and Small Firm Institute: Law Practice Management 3.0 G, 4.0 EP Live Seminar and Webcast s Best Law Office Technology, Software and Tools Improve Client Service, Increase Speed and Lower Your Costs 4.8 G, 1.2 EP Live Seminar and Webcast Trial Skills College 14.5 G Albuquerque New Mexico Criminal Defense Lawyers Association Fire in the Hole: What s Exploding in New Mexico Mining Law (2014) 5.5 G, 1.0 EP Video Replay Intellectual Property Law Institute 5.0 G, 1.0 EP Video Replay 30 How to Become a Rock Star Lawyer, the Ethical Way (2014) 2.0 EP Video Replay 30 VAWA 2013 and Tribal Jurisdiction Over Crimes of Domestic Violence (2014) 3.2 G Video Replay 31 Exempt v. Non-exempt: Overtime & Employer Liability in the Workplace 1.0 G National Teleseminar April 1 Innocent & injured Spouse Defenses to Joint Tax Liability 1.0 G National Teleseminar 7 Drafting Reps and Warranties in Business Transactions 1.0 G National Teleseminar 14 Skeptically Determining the Limits of Scientific Evidence V (2014) 5.0 G, 1.5 EP Video Replay 14 Navigating the Privileges Minefield (2014) 5.5 G Video Replay 14 Construction Lien Law in New Mexico (2014) 3.0 G Video Replay 14 The End of Law Firms: How the Cloud is Changing the Practice of Law and The ABA Model Rules with Regard to the Changing Practice of Law (2014 Annual Meeting) 1.0 G, 1.0 EP Video Replay 10 Bar Bulletin - February 25, Volume 54, No. 8

11 Writs of Certiorari As Updated by the Clerk of the New Mexico Supreme Court Joey D. Moya, Chief Clerk New Mexico Supreme Court PO Box 848 Santa Fe, NM (505) Effective February 13, 2015 Petitions for Writ of Certiorari Filed and Pending: Date Petition Filed No. 35,122 Lente v. State /13/15 No. 35,121 State v. Chakerian COA 32,872 02/13/15 No. 35,120 State v. DeLao COA 33,870 02/10/15 No. 35,115 State v. Garcia COA 33,796 02/10/15 No. 35,114 State v. Duran COA 33,862 02/10/15 No. 35,119 Lester v. Lester COA 33,926 02/09/15 No. 35,118 City of Albuquerque v. Lester COA 33,261 02/09/15 No. 35,113 State v. Padilla COA 33,887 02/09/15 No. 35,111 Lea County v. Markum Ranch COA 32,510 02/05/15 No. 35,109 Valenzuela v. N.M. Dept. of Workforce Solutions COA 34,231 02/05/15 No. 35,107 State v. Villanueva COA 34,092 02/04/15 No. 35,106 Salomon v. Franco /04/15 No. 35,105 Pena-Kues v. Smith s Food & Drug COA 32,790 02/03/15 No. 35,049 State v. Surratt COA 32,881 02/02/15 No. 35,108 Pena-Kues v. Smith s Food & Drug COA 32,790 01/30/15 No. 35,101 Dalton v. Santander COA 33,136 01/28/15 No. 35,097 Marrah v. Swisstack /26/15 No. 35,098 Torres v. Hatch /23/15 No. 35,095 State v. Romero COA 34,162 01/23/15 No. 35,094 State v. Venegas-Diaz COA 33,106 01/23/15 No. 35,093 State v. Lujan COA 33,995 01/23/15 No. 35,100 State v. Sheehan COA 33,192 01/22/15 No. 35,092 State v. Sandoval COA 33,952 01/22/15 No. 35,089 State v. Demory COA 33,659 01/21/15 No. 35,090 State v. Upchurch COA 33,240 01/20/15 No. 35,084 Branch v. State /16/15 No. 35,088 Vine v. State /15/15 No. 35,086 MoreNo. v. Hatch /13/15 No. 35,085 Strand v. Janecka /12/15 No. 35,069 Arencon v. City of Albuquerque COA 33,196 01/08/15 Response filed 1/23/15 No. 35,060 Medina v. State /30/14 No. 35,050 State v. Hernandez COA 32,110/32,109 12/22/14 Response ordered; due 2/27/15 No. 35,046 Ramirez v. Ortiz /15/14 No. 35,040 Montoya v. Wrigley /15/14 No. 35,039 Ramirez v. Hatch /15/14 No. 35,037 Graham v. Hatch /15/14 No. 35,099 Keller v. Horton /11/14 No. 35,068 Jessen v. Franco /25/14 No. 34,949 State v. Chacon COA 33,748 10/27/14 Response filed 10/31/14 No. 34,937 Pittman v. N.M. Corrections Dept /20/14 No. 34,932 Gonzales v. Sanchez /16/14 No. 34,881 Paz v. Horton /08/14 No. 34,913 Finnell v. Horton /22/14 Response ordered; due 2/16/15 No. 34,907 Cantone v. Franco /11/14 No. 34,885 Savage v. State /08/14 No. 34,878 O Neill v. Bravo /26/14 No. 34,777 State v. Dorais COA 32,235 07/02/14 Response filed 7/31/14 No. 34,790 Venie v. Velasquz COA 33,427 06/27/14 Response ordered; due 8/22/14 No. 34,765 Helfferich v. Frawner /24/14 Response ordered; due 3/15/15 No. 34,793 Isbert v. Nance /23/14 No. 34,775 State v. Merhege COA 32,461 06/19/14 No. 34,776 Serna v. Franco /13/14 No. 34,748 Smith v. State /06/14 No. 34,731 Helfferich v. Frawner /29/14 Response ordered; due 3/15/15 No. 34,739 Holguin v. Franco /21/14 No. 34,706 Camacho v. Sanchez /13/14 No. 34,691 Wetson v. Nance /07/14 Response ordered; filed 7/14/14 No. 34,589 Seager v. State /23/14 Response ordered; due 2/18/15 No. 34,563 Benavidez v. State /25/14 Response ordered; filed 5/28/14 No. 34,303 Gutierrez v. State /30/13 No. 34,067 Gutierrez v. Williams /14/13 No. 33,868 Burdex v. Bravo /28/12 Response ordered; filed 1/22/13 No. 33,819 Chavez v. State /29/12 No. 33,867 Roche v. Janecka /28/12 No. 33,539 Contreras v. State /12/12 Response ordered; due 10/24/12 No. 33,630 Utley v. State /07/12 Certiorari Granted but not yet Submitted to the Court: (Parties preparing briefs) Date Writ Issued No. 33,725 State v. Pasillas COA 31,513 09/14/12 No. 33,837 State v. Trujillo COA 30,563 11/02/12 No. 33,877 State v. Alvarez COA 31,987 12/06/12 No. 33,930 State v. Rodriguez COA 30,938 01/18/13 No. 33,994 Gonzales v. Williams COA 32,274 08/30/13 No. 33,863 Murillo v. State /30/13 No. 33,810 Gonzales v. Marcantel /30/13 No. 34,363 Pielhau v. State Farm COA 31,899 11/15/13 No. 34,274 State v. No.len /20/13 No. 34,400 State v. Armijo COA 32,139 12/20/13 No. 34,443 Aragon v. State /14/14 No. 34,522 Hobson v. Hatch /28/14 No. 34,582 State v. Sanchez COA 32,862 04/11/14 Bar Bulletin - February 25, Volume 54, No. 8 11

12 Writs of Certiorari No. 34,637 State v. Serros COA 31,975 05/01/14 No. 34,694 State v. Salazar COA 33,232 06/06/14 No. 34,669 Hart v. Otero County Prison /06/14 No. 34,650 Scott v. Morales COA 32,475 06/06/14 No. 34,630 State v. Ochoa COA 31,243 06/06/14 No. 34,789 Tran v. Bennett COA 32,677 08/01/14 No. 34,769 State v. Baca COA 32,553 08/01/14 No. 34,786 State v. Baca COA 32,523 08/01/14 No. 34,784 Silva v. Lovelace Health Systems, Inc. COA 31,723 08/01/14 No. 34,805 King v. Behavioral Home Care COA 31,682 08/15/14 No. 34,798 State v. Maestas COA 31,666 08/15/14 No. 34,843 State v. Lovato COA 32,361 08/29/14 No. 34,834 SF Pacific Trust v. City of Albuquerque COA 30,930 08/29/14 No. 34,772 City of Eunice v. N.M. Taxation and Revenue Dept. COA 32,955 08/29/14 No. 34,726 Deutsche Bank v. Johnston COA 31,503 08/29/14 No. 34,668 State v. Vigil COA 32,166 09/26/14 No. 34,855 Rayos v. State COA 32,911 10/10/14 No. 34,728 Martinez v. Bravo /10/14 No. 34,812 Ruiz v. Stewart /10/14 No. 34,886 State v. Sabeerin COA 31,412/31,895 10/24/14 No. 34,866 State v. Yazzie COA 32,476 10/24/14 No. 34,854 State v. Alex S. COA 32,836 10/24/14 No. 34,830 State v. Mier COA 33,493 10/24/14 No. 34,826 State v. Trammel COA 31,097 10/24/14 No. 34,997 T.H. McElvain Oil & Gas v. Benson COA 32,666 12/19/14 No. 34,993 T.H. McElvain Oil & Gas v. Benson COA 32,666 12/19/14 No. 34,978 Atherton v. Gopin COA 32,028 12/19/14 No. 34,946 State v. Kuykendall COA 32,612 12/19/14 No. 34,945 State v. Kuykendall COA 32,612 12/19/14 No. 34,940 State v. Flores COA 32,709 12/19/14 No. 34,929 Freeman v. Love COA 32,542 12/19/14 No. 35,063 State v. Carroll COA 32,909 01/26/14 No. 35,035 State v. Stephenson COA 31,273 01/26/14 No. 35,029 State v. Abeyta COA 33,485 01/26/14 No. 35,016 State v. Baca COA 33,626 01/26/14 No. 35,005 State v. Archuleta COA 32,794 01/26/14 No. 34,974 Moses v. Skandera COA 33,002 01/26/14 No. 34,995 State v. Deangelo M. COA 31,413 02/06/15 Certiorari Granted and Submitted to the Court: (Submission Date = date of oral argument or briefs-only submission) Submission Date No. 33,548 State v. Marquez COA 30,565 04/15/13 No. 33,808 State v. Nanco COA 30,788 08/14/13 No. 33,862 State v. Gerardo P. COA 31,250 08/14/13 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 11/14/13 No. 34,085 Badilla v. Walmart COA 31,162 12/04/13 No. 34,146 Madrid v. Brinker Restaurant COA 31,244 12/09/13 No. 34,093 Cordova v. Cline COA 30,546 01/15/14 No. 34,194/34,204 King v. Faber COA 34,116/31,446 02/24/14 No. 34,287 Hamaatsa v. Pueblo of San Felipe COA 31,297 03/26/14 No. 34,120 State v. Baca COA 31,442 03/26/14 No. 34,122 State v. Steven B. consol. w/ State v. Begaye COA 31,265/32,136 08/11/14 No. 34,286 Yedidag v. No. 34,499 Roswell Clinic Corp. COA 31,653 08/11/14 Perez v. N.M. Workforce Solutions Dept. COA 32,321/32,330 08/13/14 No. 34,546 NM Dept. Workforce Solutions v. Garduno COA 32,026 08/13/14 No. 34,435 State v. Strauch COA 32,425 08/27/14 No. 34,447 Loya v. Gutierrez COA 32,405 08/27/14 No. 34,295 Dominguez v. State /24/14 No. 34,501 SNo.w v. Warren Power COA 32,335 10/01/14 No. 34,607 Lucero v. Northland Insurance COA 32,426 10/29/14 No. 34,554 Miller v. Bank of America COA 31,463 11/10/14 No. 34,516 State v. Sanchez COA 32,994 12/17/14 No. 34,613 Ramirez v. State COA 31,820 12/17/14 No. 34,548 State v. Davis COA 28,219 01/14/15 No. 34,526 State v. Paananen COA 31,982 01/14/15 No. 34,549 State v. Nichols COA 30,783 02/25/15 Dispositional Order on Writ of Certiorari: Date Order Filed No. 34,476 State v. Pfauntsch COA 31,674 02/09/15 Petition for Writ of Certiorari Denied: Date Order Filed No. 35,083 Partida v. Motor Vehicle Division COA 33,698 02/12/15 No. 35,082 State v. Williams COA 33,869 02/12/15 No. 35,080 State v. Barela COA 34,034 02/12/15 No. 35,079 State v. McKnight COA 33,872 02/12/15 No. 35,076 Begay v. Consumer Direct COA 33,288 02/12/15 No. 35,073 State v. Butler COA 33,696 02/12/15 No. 35,070 State v. Acosta /12/15 12 Bar Bulletin - February 25, Volume 54, No. 8

13 Opinions As Updated by the Clerk of the New Mexico Court of Appeals Published Opinions Mark Reynolds, Chief Clerk New Mexico Court of Appeals PO Box 2008 Santa Fe, NM Effective February 13, 2015 No st Jud Dist Santa Fe CV , L NOICE v BNSF RAILWAY COMPANY (reverse) 2/10/2015 Unublished Opinions No th Jud Dist Valencia JQ-12-01, CYFD v ANDREA L (affirm) 2/09/2015 No rd Jud Dist Dona Ana CR , STATE v O OROPEZA (reverse) 2/09/2015 No th Jud Dist Lea CR , STATE v J HALL (affirm) 2/09/2015 No st Jud Dist Santa Fe CV , V ARELLANO v NM DEPT OF HEALTH (reverse) 2/09/2015 No st Jud Dist Santa Fe DM , L LOPEZ v J GONZE (reverse and remand) 2/10/2015 No rd Jud Dist Dona Ana LR-14-9, STATE v PAUL REYES (affirm) 2/10/2015 No th Jud Dist Luna CR , STATE v D MCBRIDE (affirm) 2/10/2015 No th Jud Dist San Juan CV-14-6, NATIONAL EDUCATION CENTRAL (dismiss) 2/10/2015 No th Jud Dist Lincoln CR-13-61, STATE v A RAMOS (reverse) 2/11/2015 No th Jud Dist Otero CR , STATE v R CASTRO (affirm) 2/12/2015 No th Jud Dist Lea JQ , CYFD v MARY S (dismiss) 2/12/2015 No nd Jud Dist Bernalillo LR-12-10, STATE v T PERALTA (affirm) 2/12/2015 No nd Jud Dist Bernalillo LR , STATE v R NAJAR (affirm) 2/12/2015 Slip Opinions for Published Opinions may be read on the Court s website: Bar Bulletin - February 25, Volume 54, No. 8 13

14 Clerk s Certificates From the Clerk of the New Mexico Supreme Court Joey D. Moya, Chief Clerk New Mexico Supreme Court PO Box 848 Santa Fe, NM (505) Clerk s Certificate of Withdrawal Effective February 3, 2015: Jude A. Cisneros 9950 Campo Road, Suite 101 Spring Valley, CA Effective February 2, 2015: Harry G.W. Griffith Jr Cripple Creek Drive Pinehurst, TX Effective February 1, 2015: Edward J. Hendrick Jr ParView Drive Sanibel, FL Effective February 2, 2015: Steven J. Kuehl 7887 E. Belleview Avenue, Suite 1100 Denver, CO Effective February 2, 2015: Jennifer R. Petersen Spencer Street Elkhorn, NE Effective February 2, 2015: Tara Selver 16 Raft Island Drive NW Gig Harbor, WA Clerk s Certificate of Reinstatement to Active Status As of February 5, 2015: Corrie Lynn Gerdts-Darr 2001 Caballo Trail Brownwood, TX Robert Y. Hirasuna 15 Tano Norte Santa Fe, NM Effective January 30, 2015: Cole B. Stinson 1684 Stockley Lane Old Hickory, TN Jena Road Clerk s Certificate of Correction The clerk s certificate of address and telephone changes dated January 16, 2015, reported an incorrect telephone number for Fermin A. Rubio: Fermin A. Rubio N.M. State University- Office of General Counsel MSC 3UGC - PO Box Weddell Road, Hadley Hall Room 135 Las Cruces, NM (fax) Clerk s Certificate of Change to Inactive Status Effective January 30, 2015: Anna Sibylle Ehresmann PO Box Albuquerque, NM Effective January 26, 2015: Meryl Elizabeth Francolini Clark County District Attorney s Office 3412 Lockport Street Las Vegas, NV M. Catherine Hayden 800 Ridgecrest Drive SE Albuquerque, NM Hilary Lamberton PO Box 6933 Santa Fe, NM Sara Jane Powell Law Office of Sara J. Powell PLLC 550 W. Portland Street Phoenix, AZ Effective February 1, 2015: Stefanie Lee Kyser Kyser Law Firm, LLC PO Box 9007 Santa Fe, NM Hon. Robert Hayes Scott U.S. District Court - District of New Mexico 333 Lomas Blvd. NW, Suite 620 Albuquerque, NM Effective January 27, 2015: Jiehoon Lee 360 S. Alvarado Street, Suite 6 Los Angeles, CA Effective December 31, 2014: Bret G. Saxe 401 4th Street NE Washington, DC Dated Feb. 9, 2015 Clerk s Certificate of Address and/or Telephone Changes Hon. Hector H. Balderas Office of the Attorney General PO Box Galisteo Street (87501) Santa Fe, NM (fax) Nicole Beder 7150 Old Santa Fe Trail Santa Fe, NM Hon. Lyndy D. Bennett Eleventh Judicial District Court 207 W. Hill Avenue, Suite 200 Gallup, NM (fax) Tara Lynne Edgmon Office of the Seventh Judicial District Attorney 855 Van Patten Street Truth or Consequences, NM (fax) Scott Fuqua Fuqua Law & Policy, PC PO Box Santa Fe, NM Michelle S. Garcia Office of the Second Judicial District Attorney 520 Lomas Blvd. NW Albuquerque, NM (fax) Thomas E. Hare Law Offices of the Public Defender 2395 N. Florida Avenue Alamogordo, NM Andrea D. Harris Carter & Valle Law Firm 8012 Pennsylvania Circle NE Albuquerque, NM (fax) Gail A. Heglund 710 N. Washington Street Bismarck, ND Bar Bulletin - February 25, Volume 54, No. 8

15 Clerk s Certificates Twila A. Hoon The Law Offices of Ramsey & Hoon, LLC PO Box Granite Avenue NW (87104) Albuquerque, NM (fax) Lisa C. Krenkel Krenkel & Krenkel, LLC 107 Main Street Allenhurst, NJ (fax) Brenda M. Maloney Quarles & Brady, LLP 1700 K Street NW, Suite 825 Washington, DC (fax) LynneAnne Maxwell Rose L. Brand & Associates, PC 7430 Washington Street NE Albuquerque, NM roselbrand.com Hon. Cindy M. Mercer Thirteenth Judicial District Court PO Box Highway 314 SW Los Lunas, NM (fax) Robert David Pederson Office of the Thirteenth Judicial District Attorney PO Box W. High Street Grants, NM (fax) Jennifer Michelle Perkins Office of the Arizona Attorney General 1275 W. Washington Street Phoenix, AZ Simone M. Seiler NM Human Services Department 455 Camino Del Rey, #C Los Lunas, NM Michelle Renee Torres 3614 Headingly Avenue NE Albuquerque, NM Richard B. Wellborn Richard Wellborn, Attorney at Law, LLC 1990 E. Lohman Avenue, Suite 204 Las Cruces, NM rickwellbornlaw.com Roger E. Yarbro Yarbro & Associates, PA Academy Road NE, Suite 301, PMB 249 Albuquerque, NM (fax) Robin L. Cooley Earthjustice th Street, Suite 1600 Denver, CO (fax) Timothy L. Hartley 201 Laurence Drive #208 Heath, TX Laurie McFarland 3636 Goldstone Drive Idaho Falls, ID Adam D. Melton Langley LLP 2001 E. Campbell Avenue, Suite 203 Phoenix, AZ (fax) Roger Moore PO Box 1441 Albuquerque, NM (fax) Flynn Evelyn Sylvest 160 Longhorn Lane Ojai, CA Orlando R. Lopez Lopez Scott, LLC 3707 N. St. Mary s Street, Suite 200 San Antonio, TX (fax) Kevin J. McCready J. Matthew Myers John A. Myers Myers, McCready & Myers, PC 1401 Central Avenue NW, Suite B Albuquerque, NM (fax) Floyd D. Wilson Myers, McCready & Myers, PC Highway 14 North, Suite 105 Cedar Crest, NM (fax) Vickie R. Wilcox Wilcox Law Firm, PC PO Box Rio Grande Blvd. NW, Suite H-160 (87104) Albuquerque, NM (fax) Pilar L. Murray PO Box 717 El Prado, NM Bar Bulletin - February 25, Volume 54, No. 8 15

16 Clerk s Certificates Clerk s Certificate of Admission On February 9, 2015: Anita Basi Child Support Enforcement Division 1015 Tijeras Avenue NW Albuquerque, NM Clerk s Certificate of Name Change As of February 4, 2015: Lysette Romero Cordova f/k/a Lysette Romero New Mexico Court of Appeals PO Box Don Gaspar Avenue (87501) Santa Fe, NM In Memoriam As of January 28, 2015: William Calvin Fleming PO Box 3023 Carlsbad, NM As of November 20, 2014: Myron May PO Box 566 Wewahitchka, FL Clerk s Certificate of Withdrawal Effective February 9, 2015: Andrew Seth Lewinter 101 E. Broadway, Suite 220 Eugene, OR Clerk s Certificate of Change to Inactive Status Effective February 2, 2015: Matthew Louis Altenberg 2667 Via Berrenda Santa Fe, NM Effective January 30, 2015: Sandra J. Clinton PO Box 7511 Albuquerque, NM Devin Delrow 7721 Inversham Drive, #128 Falls Church, VA Amy Stoeckl Ybarra Travis County Attorney s Office PO Box 1748 Austin, TX Effective January 29, 2015: Andria L. Cooper PO Box 131 Wayne, NE Effective January 1, 2015: Stephen D. Dillon 2404 Glenwood Court NW Los Ranchos, NM Effective January 27, 2015: Hon. Mary Dougherty PO Box 200 Corrales, NM Effective January 26, 2015: Cody R. Lujan Hall and Hall, Inc Logan Street Denver, Co Effective February 1, 2015: Ameryn Maestas PO Box 1501 Carlsbad, NM Susan M. Palmer 1506 Park Avenue SW Albuquerque, NM Effective January 26, 2015: Thomas W. Nececkas 152 Oakwood Drive Wayne, NJ Effective January 1, 2015: Evan Bromley Rice 4818 East Calle Tuberia Phoenix, AZ Effective January 28, 2015: Erica Boutte Scott Miller Stratvert PA PO Box Albuquerque, NM Effective January 23, 2015: Luralene D. Tapahe Puyallup Tribe of Indians 3009 E. Portland Avenue Tacoma, WA Effective February 1, 2015: Koo Im Tong 184 Corona Street San Francisco, CA Effective February 2, 2015: Misty Briscoe-Garcia PO Box 1134 Rifle, CO Effective January 1, 2015: Darin Foster 400 Goodnight Trail Justin, TX Effective January 1, 2015: Carolyn S. Fudge 4600 Cayetana Place NW Albuquerque, NM Effective February 1, 2015: Ann Halter 315 Meadow Lake Drive Columbia Falls, MT Effective January 30, 2015: Rose Uyehara Himrod PO Box Santa Fe, NM H. Elizabeth Losee 635 Applewood Road Corrales, NM Effective January 29, 2015: Chad R. Prososki th Street South, Suite Z-203 Fargo, ND Effective December 31, 2014: Charles Philip Reynolds 718 Central Avenue SW Albuquerque, NM Effective January 28, 2015: Hon. Jerald Alan Valentine 3820 Paradise Lane Las Cruces, NM Effective February 2, 2015: Andrea Waye Reynolds 1619 N. Sixth Street Boise, ID Laura D. White 809 Lake County Lane Madison, MS Effective February 1, 2015: John Chapman Young 503 McKie Street Tahlequah, OK Bar Bulletin - February 25, Volume 54, No. 8

17 Recent Rule-Making Activity As Updated by the Clerk of the New Mexico Supreme Court Pending Proposed Rule Changes Open for Comment: Joey D. Moya, Chief Clerk New Mexico Supreme Court PO Box 848 Santa Fe, NM (505) Effective February 25, 2015 Comment Deadline For 2014 year-end rule amendments that became effective December 31, 2014, please see the November 5, 2014, issue of the Bar Bulletin or visit the New Mexico Compilation Commission s website at Recently Approved Rule Changes Since Release of 2014 NMRA: Children s Court Rules and Forms Effective Date Commencement of action. 08/31/ Custody hearing. 07/01/ Notice of change in placement. 08/31/ Dismissal of a respondent or child; party dismissal sheet. 08/31/ Adjudicatory hearing; time limits; continuances. 07/01/ A Abuse and neglect party information sheet. 08/31/ Advance notice of change of placement. 08/31/ Emergency notice of change of placement. 08/31/ Abuse and neglect party dismissal sheet. 08/31/14 Rules of Appellate Procedure A Expedited appeals from Children s Court custody hearings. 07/01/ Appointment of counsel. 07/01/14 Rules Governing Admission to the Bar Admission requirements. 06/01/ Qualifications. 06/01/ Application fees. 06/01/ Admission by motion. 06/01/15 Supreme Court General Rules 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 To view recently approved rule changes, visit the New Mexico Compilation Commission s website at Bar Bulletin - February 25, Volume 54, No. 8 17

18 Advance Opinions From the New Mexico Supreme Court and Court of Appeals Certiorari Denied, November 21, 2014, No. 34,910 From the New Mexico Court of Appeals Opinion Number: 2015-NMCA-005 MONICA LUJAN, as Personal Representative of the Estate of PEGGY LUJAN- SILVA, Decedent, Plaintiff-Appellant, v. NEW MEXICO DEPARTMENT OF TRANSPORTATION, Defendant-Appellee Docket No. 31,883 (filed August 4, 2014) APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY BARBARA J. VIGIL, District Judge PAUL MAESTAS MAESTAS & SUGGETT, P.C. Albuquerque, New Mexico for Appellant KATHERINE A. BASHAM BASHAM & BASHAM, P.C. Santa Fe, New Mexico Opinion Michael E. Vigil, Judge {1} Monica Lujan (Plaintiff), as personal representative of Peggy Lujan-Silva (Decedent), sued the New Mexico Department of Transportation (the Department) for wrongful death arising from a single-car accident, alleging that the Department s negligent failure to keep the roadway clear of dangerous debris caused the accident. The district court granted the Department s motion for summary judgment. We reverse. BACKGROUND {2} On October 29, 2004, Decedent was driving south on Interstate-25 (I-25) adjacent to the exit ramp for the St. Francis Road exit at approximately 2:00 p.m. when she encountered pieces of semi-truck tire debris on the roadway, and either struck the debris or swerved to avoid it. Decedent lost control of her vehicle, and it went into an uncontrolled slide and flipped four times, ejecting Decedent from the vehicle. Decedent died at the scene. The roadway at the location of the accident is straight and level, and at the time of the accident 18 Bar Bulletin - February 25, Volume 54, No. 8 PETER J. GOULD Santa Fe, New Mexico for Appellee the weather was clear, the pavement was dry, and the center and the edge lines were clearly marked. There is no evidence of precisely how long the tire debris was on the roadway, and the Department had no actual notice of the tire debris at that location prior to the accident. {3} The Department moved for summary judgment, asserting that the undisputed material facts demonstrate that the Department had no actual notice or constructive notice of the tire debris. It being undisputed that the Department had no actual notice, the Department contended that it had no constructive notice of the debris because Plaintiff was unable to pinpoint how long the debris was on the road where the accident took place. Plaintiff s response centered on its contention that the Department was negligent in failing to identify debris on the highway in a timely manner and that the Department s inspection protocols are unreasonably lax and not complied with. {4} The district court granted summary judgment in favor of the Department on the grounds that the Department did not have actual or constructive notice of the tire debris and that Plaintiff s argument that the Department s failure to have a stronger or more consistent policy for the removal of debris was too speculative to prove proximate cause. Plaintiff appeals, asserting that the summary judgment order must be reversed because: (1) there are factual issues about whether the Department breached its duty to locate the tire debris on the roadway, and (2) there are factual issues regarding proximate cause. STANDARD OF REVIEW {5} On appeal, our review of an order granting summary judgment is de novo. Summers v. Ardent Health Servs., L.L.C., 2011-NMSC-017, 10, 150 N.M. 123, 257 P.3d 943. We affirm an order granting summary judgment when there is no evidence raising a reasonable doubt about any genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Self v. United Parcel Serv., Inc., 1998-NMSC-046, 6, 126 N.M. 396, 970 P.2d 582. Thus, the movant has the burden of showing a complete absence of any genuine material issue of fact and that such party is entitled to judgment as a matter of law. Durham v. Sw. Developers Joint Venture, 2000-NMCA-010, 42, 128 N.M. 648, 996 P.2d 911. [O]nce the movant makes a prima facie showing that he is entitled to summary judgment, the burden shifts to the party opposing the motion to demonstrate the existence of specific evidentiary facts which would require trial on the merits. Cain v. Champion Window Co. of Albuquerque, LLC, NMCA-085, 7, 142 N.M. 209,164 P.3d 90 (internal quotation marks and citation omitted). In our de novo review of the summary judgment record, [w]e resolve all reasonable inferences in favor of the non-movant and view the pleadings, affidavits, depositions, answers to interrogatories, and admissions in a light most favorable to a trial on the merits. Id. 6. We do so because New Mexico courts view summary judgment with disfavor, preferring a trial on the merits. Romero v. Philip Morris, Inc., 2010-NMSC-035, 8, 148 N.M. 713, 242 P.3d 280. DISCUSSION {6} Plaintiff s complaint against the Department is for negligence under the roadway maintenance exception of the Tort Claims Act, NMSA 1978, (A) (1991), which waives sovereign immunity for damages caused by the government s negligent maintenance of

19 Advance Opinions highways. Plaintiff s negligence action falls under this exception because the identification and remediation of roadway hazards constitutes maintenance under Section Rutherford v. Chaves Cnty., 2003-NMSC-010, 25, 133 N.M. 756, 69 P.3d {7} NMSA 1978, Section (B) (1976) of the Tort Claims Act provides in part that liability under the Act shall be based upon the traditional tort concepts of duty and the reasonably prudent person s standard of care in the performance of that duty. Thus, liability under the Act is premised on traditional concepts of negligence. Brenneman v. Bd. of Regents of Univ. of N.M., 2004-NMCA-003, 10, 135 N.M. 68, 84 P.3d 685 (quoting Methola v. Cnty. of Eddy, 1980-NMSC-145, 19, 95 N.M. 329, 622 P.2d 234 ). See Silva v. State, 1987-NMSC-107, 47, 106 N.M. 472, 745 P.2d 380 (Stowers, J., dissenting) ( The phrase traditional concepts of duty and the reasonably prudent person s standard of care,... refers to theories of negligence. ), limited on other grounds by Archibeque v. Moya, 1993-NMSC-079, 14, 116 N.M. 616, 866 P.2d 344. It is axiomatic that a negligence action requires that there be a duty owed from the defendant to the plaintiff; that based on a standard of reasonable care under the circumstances, the defendant breached that duty; and that the breach was a cause in fact and proximate cause of the plaintiff s damages. Romero v. Giant Stop-N-Go of N.M., Inc., 2009-NMCA-059, 5, 146 N.M. 520, 212 P.3d 408. The absence of any of these elements is fatal to a plaintiff s claim. Id. We address each of these elements in turn. 1. Duty {8} Whether the defendant owes a duty to the plaintiff, is a legal question for the courts to decide. Id In Rodriguez v. Del Sol Shopping Ctr. Assocs., 2014-NMSC- 014, P.3d (Nos. 33,896 and 33,949, May 8, 2014), our Supreme Court recently corrected inconsistences in New Mexico case law on how courts are to determine whether a legal duty is owed. The Court held that [f]oreseeability is not a factor for courts to consider when determining the existence of a duty[.] Id. 1. We follow that holding in this case. {9} In Lerma v. State Highway Department of New Mexico, our Supreme Court stated that the Department has a duty to exercise ordinary care in the maintenance of its highways NMSC-069, 11, 117 N.M. 782, 877 P.2d However, the Lerma Court framed the duty inquiry around protecting the public from foreseeable harm on New Mexico s roadways. Id. 8. Our appellate courts have continued to use Lerma s foreseeability of harm language in negligent roadway maintenance cases. See, e.g., Rutherford, 2003-NMSC-010, 12 ( [The government entity] has the common law duty to exercise ordinary care to protect the general public from foreseeable harm on its roadways. ); accord Ryan v. N.M. State Highway & Transp. Dep t, NMCA-116, 12, 125 N.M. 588, 964 P.2d 149. {10} Furthermore, in cases where the government did not itself create the condition, New Mexico s negligent highway maintenance case law was developed to examine not just whether harm was generally foreseeable, but also whether the government had notice of the particular dangerous condition at issue. See Blackburn v. State, 1982-NMCA-073, 32, 98 N.M. 34, 644 P.2d 548 ( [W]here the State has not created the dangerous condition, no duty to remedy the dangerous condition arises until actual or constructive notice is present. ). Thus, the inquiry into the government s duty to exercise ordinary care in the maintenance of its roadways has been fact-intensive, focusing on whether the government entity had actual or constructive notice under the specific circumstances of the case. See, e.g., Martinez v. N.M. Dep t of Transp., 2013-NMSC-005, 41-50, 296 P.3d 468 (determining that the Department s duty to erect barriers depended upon whether it had notice that collisions occurred along the stretch of highway where the collision at issue occurred); Ryan, 1998-NMCA-116, 7 (determining that the Department s duty depended upon whether it had actual or constructive notice of wild animal crossings creating a dangerous condition on a particular stretch of highway). {11} In Rodriguez, our Supreme Court rejected such a fact-intensive inquiry to determine whether a duty exists. See Rodriguez, 2014-NMSC-014, 1, 3, 11 (holding that [f]oreseeability is a fact-intensive inquiry relevant only to breach of duty and legal cause considerations.... not [to] whether a duty exists and overruling prior cases insofar as they conflict with the appropriate duty analysis). The Court also warned that foreseeability can mask itself behind other terms. See id (explaining that considering the remoteness of a potential harm, by inviting a discussion of the particularized facts in the case, is essentially a foreseeability driven analysis). Thus, we do not consider actual or constructive notice of the tire debris Decedent encountered as determinative of the Department s duty to Decedent. {12} Nevertheless, the Department s duty in this case is settled: the government has the duty to maintain roadways in a safe condition for the benefit of the public. Martinez, 2013-NMSC-005, 18. This includes a duty to conduct reasonable inspections of roadways, of which identification and removal of dangerous debris from roadways are necessary corollaries. See Blackburn, 1982-NMCA-073, 17, 32 (stating that liability for a dangerous condition on a roadway involves situations in which the State did not create the dangerous condition, but knew or should have known about it, and corrected it ); see also Rutherford, 2003-NMSC-010, 12 ( The identification of hazards on roadways is essential if governmental entities are to fulfill their responsibilities of keeping the highways safe for the motoring public. ). We therefore conclude that the Department owed a duty to Decedent to identify and remove dangerous debris from the highway. 2. Breach {13} The responsibility for determining whether the defendant has breached a duty owed to the plaintiff entails a determination of what a reasonably prudent person would foresee, what an unreasonable risk of injury would be, and what would constitute an exercise of ordinary care in light of all the surrounding circumstances. Pollock v. State Highway & Transp. Dep t, 1999-NMCA-083, 11, 127 N.M. 521, 984 P.2d 768 (alteration, internal quotation marks, and citation omitted). One can be negligent by either acting or failing to do an act which one is under a duty to do and which a reasonably prudent person, in the exercise of ordinary care, would do in order to prevent injury. UJI NMRA. Ordinary care is that care which a reasonably prudent person would use in the conduct of the person s own affairs. UJI NMRA. What constitutes ordinary care will vary under the circumstances. Id. As the risk of danger that should reasonably be foreseen increases, the amount of care required also increases. Id. All of the surrounding circumstances should be considered when evaluating whether ordinary care was used. Id. Bar Bulletin - February 25, Volume 54, No. 8 19

20 Advance Opinions {14} The Department argued that it owed Decedent no duty to clear the debris because it had no actual or constructive knowledge of its presence at the particular location and the particular time that the accident occurred. Following Rodriguez, and having concluded that the Department had a duty in this case, we consider notice to determine whether there is a question of fact as to whether the Department breached its duty of reasonable inspection. See Martinez, 2013-NMSC-005, 21 ( [T]he term maintenance requires a reasonable response to a known dangerous condition on a roadway. (emphasis added)); Blackburn, 1982-NMCA-073, 17 (stating the plaintiff must prove that the defendant had actual or constructive notice of the dangerous condition a sufficient time prior to the time of the accident so that measures could have been taken to protect against the dangerous condition ). {15} Here, although it is undisputed that the Department had no actual notice of the particular debris at issue, the Department does not argue that it was not aware of the risk to motorists that roadway debris creates generally. Indeed, in the Department s motion for summary judgment, it acknowledged that its maintenance responsibilities include identifying and removing hazardous litter from roadways. Thus, the issue before us in this case is whether there are material issues of fact about whether the Department can be charged with constructive notice of the tire debris. See Phillips v. N.C. Dep t of Transp., 684 S.E.2d 725, 731 (N.C. Ct. App. 2009) (stating that constructive notice is defined as information or knowledge of a fact imputed by law to a person (although he may not actually have it), because he could have discovered the fact by proper diligence, and his situation was such as to cast upon him the duty of inquiring about it. (quoting State v. Poteat, 594 S.E.2d 253, (N.C. Ct. App. 2004)); Kemer v. Ohio Dep t of Transp., No. 09AP-248, 2009 WL , at * 5 (Ohio Ct. App. Oct. 29, 2009) ( Constructive notice of a defective condition can be imputed to a defendant when the plaintiff presents evidence establishing that the defect could or should have been discovered. ). {16} The depositions of the Department s employees who were responsible for maintaining the stretch of road where the accident occurred are sufficient for us to determine whether summary judgment was properly granted to the Department. Edward Martinez is the Department s maintenance supervisor for the Santa Fe area. He reports to Mark Anaya, the area maintenance supervisor which includes Santa Fe County. Mark Anaya s supervisor in turn is Miguel Gabaldon, the maintenance engineer, and Mr. Gabaldon in turn reports to John McElroy, the District 5 engineer. {17} Mr. Martinez is in charge of all maintenance of state highways in the area where the accident occurred. His responsibilities include litter pickup as well as repair of potholes, signs, guardrails, fences, snow removal, and traffic control at accidents. However, he has received no training regarding procedures for removal of litter or debris from state highways and, before this accident, to his knowledge, no members of his crew received training on removal of debris or litter from roadways. {18} His crew members are responsible for removing debris from the highway within a reasonable amount of time within two hours once they are notified of debris on the highway. In addition, his crew is told to remove debris, such as a tire tread, from the highway when they actually see it, whether or not they are performing their duties at the time. On the day of the accident, two crew members passed the scene of the accident on their way to work, sometime before 7:30 a.m. when their shift started, and they did not report seeing any debris on the highway at the accident scene. {19} According to Mr. Martinez, the Department has an obligation to patrol highways with enough frequency to locate debris on the highway that is not reported in a call to the Department. Thus, the Highway Maintenance Management System (HMMS) Handbook requires litter pick up which means to go out there and pick up litter in right of way fences of New Mexico DOT. However, there is no specification in the HMMS Handbook as to how often to conduct litter pick up. Moreover, although Mr. Martinez recognizes that a highway with dangerous debris on it has a greater chance for an accident than a highway with less traffic, he has not made a set schedule for doing litter pick up, and it is performed randomly at his discretion. {20} The HMMS Handbook also requires that road patrols be conducted, and if tire tread is encountered during a road patrol, it is to be picked up. However, the HMMS Handbook in effect on the day of the accident did not specify how often a road patrol should be conducted, even on a heavily traveled road such as I-25. The daily work reports which he or his assistant prepares every day show that between October 25 and October 29, 2004, his crew performed no work in the area around I-25 and the St. Francis exit. He also cannot tell from the daily work reports when a road patrol was last performed by the Department where the accident occurred before October 29, In fact, Mr. Martinez did nothing to identify and remove debris from the highway, other than to remove debris actually reported to the Department, although he recognizes that the Department also has an obligation, at some point, to remove dangerous debris from the highway that is not reported. {21} Mr. Martinez s supervisor is Mark Anaya, the area maintenance supervisor for the Santa Fe area. Mr. Anaya agrees that the Department is responsible for keeping highways safe for the motoring public, and this includes removing hazards from the highway. Its responsibility notwithstanding, Mr. Anaya is unaware of any administrative directives put out by the Department that outline a policy for dealing with debris in roadways that create hazards to the motoring public. {22} Mr. Anaya testified that the Department has a duty to remove hazards that are reported to exist in the highway. The Department also has an obligation to conduct road patrols to go out and discover unreported road hazards. At some point, the Department should discover an unreported hazard, but he cannot state how long one hour, one day, one week, or one month before it is unacceptable for the hazard to remain undiscovered. {23} These duties notwithstanding, he has never considered requiring an employee to drive every day in both directions of the area of I-25 under his supervision to make sure there are no hazards or dangerous conditions in the highway due to the volume of traffic it handles. Furthermore, he cannot say that Mr. Martinez s crew performs daily visual inspections of I-25 where the accident occurred, and he cannot tell when, before October 29, 2004, Mr. Martinez s crew last performed a road patrol on I-25 in the area of the accident. The only documented litter pick up done in the area was by an inmate crew on October 28, {24} Miguel Gabaldon is the Department maintenance engineer for the area where the accident occurred. He said there is no written standard of care in the HMMS Handbook regarding removal of debris from state highways. However, he testified the Department satisfies its obligation to 20 Bar Bulletin - February 25, Volume 54, No. 8

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