inside this issuebar bulletin - november 18, 2015 - volume 54, no. 46. november. c. enter for. l....

Aspens, by Julia Crooks (see page 3) www.trulyjuliedesigns.com

Current IssuesBankruptcy Law

Section

Inside This Issue

November 18, 2015 • Volume 54, No. 46

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

Animal Law Section: Annual Meeting and Best in Show Viewing ............................................. 4

Bankruptcy Law Section: Winter Social ..............4

Vote in the 2015 Board of Bar Commissioners Election .................4

Indian Law Section: Donors Needed for Bar Preparation Scholarship Fund ...............................5

Hearsay/In Memoriam ...........................................7

Disciplinary Counsel: Disciplinary Quarterly Report, July 1–Sept. 30, 2015 ...............................10

Clerk’s Certificates .................................................17

From the New Mexico Court of Appeals

2015-NMCA-077, No. 32,664: State v. Sanchez..................................................20

2015-NMCA-078, No. 33,087: Cahn v. Berryman ............................................24

http://www.trulyjuliedesigns.com

2 Bar Bulletin - November 18, 2015 - Volume 54, No. 46

November

CENTER FOR LEGAL EDUCATION

Time is running out! State Bar Center • Preliminary schedule. Visit www.nmbar.org for more information.

Sunday Monday Tuesday Wednesday Thursday Friday Saturday

22

29

2523

30

2624 27 28

19

CLE from home!

Self-study on-demand

courses available.

Visit nmbar.org for

more information.

On-Demand Happy Thanksgiving!

Video Replays

The New Lawyer— Rethinking Legal Services in the 21st Centuryfeaturing Mark E. Lassiter, founder of The Lassiter Law Firm4.5 G, 1.5 EPLive and Webcast

Have you earned all of your required CLE credit for 2015?

32015 Real Property Institute5.0 G, 1.0 EP The Trial Variety:

Juries, Experts and Litigation6.0 GCo-sponsor: Paralegal Division

4Reciprocity in New Mexico4.5 G, 2.5 EP1

December

Teleseminars available all month. Visit nmbar.org for more information.

Teleseminar

76 10 118

Video Replays

Current Immigration Issues for the Criminal Defense Attorney5.0 G, 2.0 EP

Stuart Teicherthe CLE ‘Performer’

6.0 EP

Law Practice Sucession—

A Little Thought Now, A Lot Less

Panic Later2.0 EP

Navigating New Mexico Public Land Issues5.5 G, 1.0 EPCo-sponsor: NREEL Section

Mentorship2.0 EP

Details coming soon!

18161413 1715

Video Replays

Video Replays

Looking for something else?Visit nmbar.orgfor more options.

Trial Know-How! Courtroom Skills

from A to Z7.0 G

Co-sponsor: Trial Practice Section

http://www.nmbar.org

Bar Bulletin - November 18, 2015 - Volume 54, No. 46 3

Notices .................................................................................................................................................................4Hearsay/In Memoriam .....................................................................................................................................7Disciplinary Counsel: Disciplinary Quarterly Report, July 1–Sept. 30, 2015 ..............................10Legal Education Calendar ............................................................................................................................12Writs of Certiorari ............................................................................................................................................14Court of Appeals Opinions List ...................................................................................................................16Clerk’s Certificates ...........................................................................................................................................17Recent Rule-Making Activity .......................................................................................................................19Opinions

From the New Mexico Court of Appeals2015-NMCA-077, No. 32,664: State v. Sanchez ...........................................................................20

2015-NMCA-078, No. 33,087: Cahn v. Berryman ......................................................................24

Advertising ........................................................................................................................................................29

State Bar Workshops December

2 Divorce Options Workshop 6 p.m., State Bar Center, Albuquerque

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

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

MeetingsNovember

18 Children’s Law Section BOD, Noon, Juvenile Justice Center

18 Committee on Women and the Legal Profession, noon, Modrall Sperling, Albuquerque

20 Family Law Section BOD, 9 a.m., teleconference

20 Indian Law Section BOD, 9:30 a.m., State Bar Center

20 Trial Practice Section BOD, Noon, State Bar Center

Table of Contents

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 EditorsMaureen S. Moore, Chair Curtis HayesJamshid Askar Bruce HerrNicole L. Banks Andrew SefzikAlex Cotoia Mark StandridgeKristin J. Dalton Carolyn Wolf

State Bar Staff Executive Director Joe Conte 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

©2015, 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

November 18, 2015, Vol. 54, No. 46Cover Artist: Julia Crooks was admitted to the Bar in October 2013 and was honored to be the inaugural law clerk of Chief Justice Barbara J. Vigil, followed by a clerkship with Judge Michael Vigil of the Court of Appeals. She currently does contract work as a freelance attorney. Crooksenjoys painting acrylic on canvas and drawing portraits in charcoal.

mailto:[email protected]







NoticesProfessionalism Tipcourt News

Supreme CourtProposed Amendments to the Rules Governing Pretrial Release Following the decision in State v. Brown, 2014-NMSC-038, 338 P.3d 1276, the New Mexico Supreme Court created the Ad Hoc Pretrial Release Committee to study existing pretrial release law and practice and make recommendations to the Court regarding necessary changes to improve pretrial release procedures in New Mexico. This broad-based committee, with representation from the criminal defense bar, prosecution, judges, the bail industry, jails and detention centers and the Legislature, has made a number of recommendations, including amendments to Rule 5-401 NMRA, governing pretrial decision-making in the district courts. Following the publication period and any resulting changes to Rule 5-401, the committee expects to recommend cor-responding revisions to Rules 6 401, 7 401, and 8 401 NMRA, which govern pretrial procedures in the magistrate, metropolitan and municipal courts. The Court will not make its final decisions nor take action on these recom-mended revisions until after publication for comment and full review by both the committee and the Court of all resulting input, which is an important aspect of the rule-making process. View the full text of the proposed amendments and instruc-tions for submitting comments in the Oct. 21 Bar Bulletin (Vol. 54, No. 42).

Court of AppealsAnnouncement of Vacancy A vacancy on the Court of Appeals will exist as of Jan. 1, 2016, due to the retire-ment of Hon. Cynthia Fry, effective Dec. 31. The chambers for this position will be in Santa Fe. Inquiries regarding the details or assignment of this judicial vacancy should be directed to the administrator of the Court. Alfred Mathewson, chair of the Appellate Court Judicial Nominating Commission, invites applications for this position from lawyers who meet the statu-tory qualifications in Article VI, Section 28 of the New Mexico Constitution. Applica-tions may be obtained from the Judicial Selection website: www.lawschool.unm.edu/judsel/application.php. The deadline for applications is 5 p.m., Jan. 19, 2016. Applicants seeking information regarding election or retention if appointed should

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

I will be open to constructive criticism and make such changes as are consistent with this creed and the Code of Judicial Conduct when appropriate.

contact the Bureau of Elections in the Of-fice of the Secretary of State. The Appellate Court Judicial Nominating Commission will meet beginning at 9 a.m., Jan. 27, 2016, to interview applicants for the position at the Supreme Court Building in Santa Fe. The Commission meeting is open to the public and those who want to comment on any of the candidates will have an op-portunity to be heard.

U.S. District Court for the District of New MexicoCourt Closure The U.S. District Court for the District of New Mexico will be closed Nov. 26–27 for the Thanksgiving holiday. Court will resume on Nov. 30. After-hours access to CM/ECF will remain available as regularly scheduled. Stay current with the U.S. Dis-trict Court for the District of New Mexico by visiting www.nmd.uscourts.gov.

Service on Court Panel Chief Judge M. Christina Armijo and the Article III District Judges for the Dis-trict of New Mexico solicit interest from Federal Bar members for service on the Magistrate Judge Merit Selection Panel. This Panel is responsible for the selection, appointment and reappointment of U.S. Magistrate Judges in the District. To be considered for appointment to the Panel, interested Federal Bar members in good standing should reply by Dec. 4 to the Clerk of Court, U.S. District Court, 333 Lomas Blvd. NW, Suite 270, Albuquerque, NM 87102; or by email to [email protected].

state bar NewsAttorney Support Groups• Dec. 7, 5:30 p.m. First United Methodist Church, 4th

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

• Dec. 14, 5:30 p.m. UNM School of Law, 1117 Stanford NE,

Albuquerque, King Room in the Law Library. To increase access, teleconfer-ence participation is now available. Dial 1-866-640-4044 and enter code 7976003#.

• Dec. 21, 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, 505-449-7984 or Bill Stratvert, 505-242-6845.

Animal Law SectionAnnual Meeting and Best in Show Viewing The Animal Law Section will hold its annual membership meeting from 5–7:30 p.m., Dec. 2, at the State Bar Center. The event will begin with hors d’oeuvres and a business meeting. Best in Show, a 2000 American “mockumentary” comedy film written and directed by Christopher Guest, will be shown after the business meeting. The film follows five entrants in a prestigious dog show and focuses on the slightly surreal interactions among the various owners and handlers as they travel to the show and compete, and after the show, as well as how the person-alities and characteristics of the owners match those of their dogs. Attendees are welcome to bring well-socialized dogs. R.S.V.P. to Heather Kleinschmidt, [email protected].

Bankruptcy Law SectionWinter Social The Bankruptcy Law Section is host-ing a winter social event from 5–7 p.m., Dec. 16, at Soul and Vine, 109 Gold Ave. SW, Albuquerque. There will be buffet appetizers and one drink ticket available per attendee. The event is free to section members. No R.S.V.P. required.

Board of Bar CommissionersOnline Voting Available for 2015 Election Voting in the 2015 election for the State Bar of New Mexico Board of Bar Commis-sioners began Nov. 10 and closes at noon Nov. 30. The First Bar Commissioner Dis-trict (Bernalillo County) has a contested election with seven candidates running for four positions in the district. A link to the electronic ballot and instructions was

http://www.lawschool.unm.edu/judsel/application.php

http://www.nmd.uscourts.gov



emailed to all members in the First Bar Commissioner District using email ad-dresses on file with the State Bar. To provide an email address if one is not currently on file or to request a mailed ballot, contact Pam Zimmer, [email protected]. The election will close at noon on Nov. 30.

Seeking Nominees for Access to Justice Commission The Board of Bar Commissioners will make one appointment to the New Mexico Access to Justice Commission for a three-year term. Anyone who wants to serve on the commission should send a letter of interest and brief résumé by Nov. 30 to Executive Director Joe Conte, State Bar of New Mexico, PO Box 92860, Albuquerque, NM 87199-2860; fax to 828-3765; or email to [email protected].

Committee on Women and the Legal Profession2015 Justice Minzner Outstanding Advocacy for Women Award The Committee on Women and the Legal Profession is seeking nominations for the 2015 Justice Pamela B. Minzner Outstanding Advocacy for Women Award. Each year the Committee gives this award to a New Mexico attorney, male or female, who has distinguished themselves during the prior year by providing legal assistance to women who are underrepresented or underserved or by advocating for causes that will ulti-mately benefit and/or further the rights of women. To make a nomination, submit one–three letters describing the work and accomplishments of the nominee to Zoe Lees at [email protected] by Dec. 15. The award ceremony will be held mid-January of 2016. For more details about the award and previous recipients, visit www.nmbar.org > About Us > Commit-tees.

Indian Law SectionDonors Needed for Bar Preparation Scholarship Fund Since 2006, the Indian Law Section Bar Preparation Scholarship Fund has assisted third-year law students who plan to take the New Mexico Bar Exam and express an interest in practicing Indian Law. The Scholarship aims to alleviate some of the costs associated with prepar-ing for and taking the Bar Exam. The size and number of scholarships greatly depends on the generosity of those who

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 > for Members > Lawyers/Judges Assistance

contribute to the fund. The Section urges members of the New Mexico legal com-munity to consider donating to this fund. For more information, visit www.nmbar.org > About Us > Sections > Indian Law.

Reception and Nominations for Achievement Award The Indian Law Section will announce the recipient of the third annual Achieve-ment Award at its mixer from 5–7 p.m., Nov. 19, at Georgia’s in Santa Fe, 225 Johnson St., next to the Georgia O’Keeffee museum. Appetizers are included. R.S.V.P. to Heather Kleinschmidt, [email protected]

Paralegal DivisionTribal Courts and Government CLE The Paralegal Division invites mem-bers of the legal community to bring a lunch and attend “Tribal Law and Working with the Tribal Courts” (1.0 G) presented by Tammy Lambert, govern-ment affairs director, Laguna Pueblo. The program will be held from noon–1 p.m., Nov. 18, at the State Bar Center (regis-tration fee for attorneys–$16, members of the Paralegal Division–$10, non-members–$15). Registration begins at the door at 11:45 a.m. For more information, contact Karen Atkinson, 505-341-0110, or Carolyn Winton, 505-888-4357. Telecast to Farmington, Roswell and Santa Fe. For details, visit www.nmbar.org > About Us > Divisions > Paralegal Division > CLE Programs.

uNmLaw LibraryHours Through Dec. 12Building & Circulation Monday–Thursday 8 a.m.–8 p.m. Friday 8 a.m.–6 p.m. Saturday 10 a.m.–6 p.m. Sunday Noon–8 p.m.Reference Monday–Friday 9 a.m.–6 p.m. Saturday–Sunday ClosedClosures Thanksgiving holiday: Nov. 26–27

other barsNew Mexico Black Lawyers Association‘Section 1983 and Bivens Litigation: An Overview’ CLE The New Mexico Black Lawyers As-sociation presents its annual CLE “Section

Fee ArbitrAtion ProgrAm

This program helps to resolve fee disputes between attorneys and their clients or

between attorneys. Call 505-797-6054 or 1-800-876-6227.

1983 and Bivens Litigation: An Overview” (5.0 G, 1.0 EP). The program will be 8 a.m.–4:30 p.m., Nov. 20, at the State Bar Center in Albuquerque. Tuition is only $199. Register online at www.newmexico blacklawyersassociation.org. Deadline to request a refund is Nov. 6. Purchase orders are welcome; call 505-450-1032. For more information, email [email protected].

New Mexico Criminal Defense Lawyers Association‘Blinded by Science’ and ‘The Brain’ CLE Courses The New Mexico Criminal Defense Lawyers Association presents two CLE courses in December. “Blinded by Sci-ence: An Update on Scientific Testimony, Cell Phones and Experts, Plus the Ethical Implications of Each” (4.0 G, 2.0 EP) will be Dec. 4 at the Greater Albuquerque Association of Realtors in Albuquerque. “The Brain: The Client’s, The Juror’s, The Judge’s and Yours” (3.0 G, 3.0 EP) will be Dec. 11 at the New Mexico Farm & Ranch Heritage Museum in Las Cruces.






http://www.nmbar


http://www.newmexicoblacklawyersassociation.org


Registration available at www.nmcdla.org.

New Mexico Defense Lawyers AssociationAnnual Civil Rights Seminar The New Mexico Defense Lawyers Asso-ciation presents “2015 Annual Civil Rights Seminar “(5.5 G) from 8:30 a.m.–4:15 p.m., Dec. 4, at the Greater Albuquerque Jewish Community Center. This seminar is designed for the intermediate as well as ad-vanced civil rights practitioner and adjuster. For registration and more information visit www.nmdla.org 505-797-6021.

other NewsNeighborhood Law Center CLE Conference in Santa Fe The Santa Fe Neighborhood Law Cen-ter presents the 8th annual Neighborhood

Law CLE Conference, “Law and Policy for Neighborhoods” (10.0 G, 2.0 EP), Dec. 3–4, at the Santa Fe Convention Center. The program features Supreme Court Justice Charles W. Daniels and Court of Appeals Judge Linda M. Vanzi as mid-day speakers. Early registrants (before Nov. 27) will receive a reduced fee of $350 (standard registration fee: $380). For more information, schedule and registration, visit www.sfnlc.com.

Workers’ Compensation AdministrationDestruction of Exhibits and Depositions In accordance with NMAC 11.4.4.9 (Q)-Forms, Filing and Hearing Pro-cedures: Return of Records—the New Mexico Workers’ Compensation Admin-istration will be destroying all exhibits and

depositions filed in causes closed in 2009, excluding causes on appeal. The exhibits and depositions are stored at 2410 Centre Ave SE, Albuquerque. They can be picked up until Nov. 21. For more information, contact WCA at 505-841-6028 or 1-800-255-7965 and ask for Heather Jordan, clerk of the court.

To be included in the Dec. 2 issue, all notices and editorial content must be submitted by Thursday, Nov. 19.

Submit content to [email protected].

Accelerated Bar Bulletin Holiday Deadlines

http://www.nmcdla

http://www.nmdla.org

http://www.sfnlc.com



Hearsay

Michelle Hernandez of Modrall Sperling has been appointed to a two-year term as regional president of the Hispanic Na-tional Bar Association for the Region XV (New Mexico and Utah). Hernandez is a shareholder and focuses her practice on healthcare, product liability and personal injury litigation. She attended the Univer-sity of New Mexico (undergraduate, cum laude) and the University of California at Los Angeles (J.D.). Hernandez served as a judicial law clerk to former Justice Joseph F. Baca for the New Mexico Supreme Court.

Michelle Hernandez

Tomas J. Garcia, an associate at the Modrall Sperling law firm, was named Young Lawyer of the Year 2015 by the New Mexico Defense Lawyers Association at their annual meeting held at the Hotel Albuquerque on Sept. 25. Prior to joining Modrall Sperling, Garcia clerked for Justice Charles W. Daniels of the New Mexico Supreme Court, who presented the award. Garcia’s practices in commercial, healthcare, torts/personal injury, and natural resources litigation. He is currently vice chair of the State Bar Young Lawyers Division.

Tomas J. Garcia

Abigail M. Yates has joined the Rodey Law Firm as an associate in the Albuquerque office. She practices in the litigation depart-ment, primarily with the complex and com-mercial litigation and the products and gen-eral liability practice groups. Yates attended the University of New Mexico School of Law (2015, magna cum laude). During law school, she served as manuscript editor for the New Mexico Law Review. Upon graduation, Yates received a Dean’s Award for Significant Contribution to the Law School Community.

Abigail M. Yates

Trent A. Howell has joined Montgomery & Andrews PA in the firm’s Santa Fe of-fice. Howell has experience representing small and large companies in employment, business and tort litigation throughout the state. He attended the University of Texas (B.A., English, 1994) and the University of Texas School of Law (1997). He is AV Rated by Martindale-Hubbell and is listed in Chambers & Partners: America’s Leading Lawyers (2010-2015) and Super Lawyers (2007–2009, 2014–2015).

Trent A. Howell

John Butrick and Chris Solis have joined the Law Office of George “Dave” Giddens, PC. Butrick joins the litiga-tion team. He attended the University of New Mexico School of Law (cum laude, 2015) and was admitted to the State Bar in September. Butrick was a legal in-

tern for the New Mexico Department of Workforce Solutions. He also served as a Law Clerk for the U.S. Department of the Interior, Office of the Solicitor and New Mexico Attorney General’s office. Solis joins the bankruptcy team. He attended Notre Dame (B.S., Electrical Engineering) and the University of New Mexico School of Law (2013). He comes from the Fifth Judicial District. Solis is a member of the State Bar and the Hispanic Bar Association.

John Butrick Chris Solis

Andrew Anders

Andrew Anders is now an associate at Kele-her & McLeod, PA. He practices primarily in the area of civil defense litigation. Anders began working for Keleher & McLeod in 2014 as a law clerk. Before that, he was employed as a senior engineer at Emcore Photovoltaics. He attended the New Mexico Institute of Mining and Technology (B.S., Materials Engineering), the University of New Mexico Anderson School of Manage-ment (M.B.A.), and the University of New Mexico School of Law. He was admitted to the State Bar this year.

Andrew G. Schultz was elected president of the Board of Ethics and Campaign Practices of the City of Albuquerque. Schultz is a director at the Rodey Law Firm where he serves as head of the firm’s complex and commercial litigation practice group. He has a special interest in class action and civil rights litigation, along with other complex procedural and appellate work.

Andrew G. Schultz

Colonel Joe M. Romero, junior staff judge advocate for the New Mexico National Guard, was recently published in The Pro-curement Lawyer, a quarterly periodical of the American Bar Association. The article, co-authored with Brett Sander, is titled “Vendor Vetting of Non-US Contractors in Afghanistan.” The article focuses on government contracting practices in Af-ghanistan. During 2013 and 2014, Colonel Romero was deployed to Southwest Asia as a Legal Advisor to Task Force 2010, U.S.

Forces—Afghanistan. Colonel Romero attended the University of Maryland at College Park (B.A.) and the University of Notre Dame Law School.

Col. Joe M. Romero


Hearsay

Editor’s Note: The contents of Hearsay and In Memoriam are submitted by mem-bers or derived from news clippings. Send announcements to [email protected].

Santa Fe attorneys Paul Bardacke and Ben Allison have established Bardacke Allison LLP. The firm focuses on commercial litiga-tion, intellectual property and mediations. Joining them is Breanna Houghton, a 2013 graduate of the University of Notre Dame Law School. Bardacke and Allison were recently named litigation stars for 2016 in Benchmark Litigation, and in the current edition of Best Lawyers in America, in which Bardacke was again named mediator of the year for 2016.

Bardacke and Allison

The New Mexico Defense Lawyers Association held its annual awards luncheon on Sept. 25 at Hotel Andaluz. Mark J. Riley of Riley, Shane & Keller, PA, was honored as the 2015 Outstanding Civil Defense Lawyer of the Year. Tomas J. Garcia of Modrall Sperling was honored as the 2015 Young Lawyer of the Year. NMDLA celebrated its 30th anniversary by recognizing and thanking all of its past-presidents. Those present included, from left to right, Lee M. Rogers Jr. (2001), Paul S. Grand (2002), Mark J. Riley (1997), William P. Gralow (1987), Thomas A. Sandenaw Jr. (1988), Eric Sedillo Jeffries (1991), P. Scott Eaton (2000), Daniel J. O’Brien (1999), Sean E. Garrett (2015), Paul E. Houston (2005), S. Carolyn Ramos (2009), Bryan C. Garcia (2010), Hon. Nancy J. Franchini (2011–2012), Michelle A. Hernandez (2012) and Richard M. Padilla (2014).

Modrall, Sperling, Roehl, Harris & Sisk, PABest Lawyers in America: Lawyers of the Year Arthur D. Melendres (education law), Christopher P. Muirhead

(municipal law, public finance law), Douglas R. Vadnais (bank-ruptcy and creditor rights), Earl E. DeBrine (oil and gas law), George R. McFall (employment law: management), Jennifer A. Noya (employment law: individuals), John R. Cooney (energy law), Maria O’Brien (water law), Stuart R. Butzier (natural resources law) and Walter E. Stern III (education law).

Pregenzer, Baysinger, Wideman & Sale, PCBest Lawyers in America Nell Graham Sale (elder law)

Rodey, Dickason, Sloan, Akin & Robb, P ABest Lawyers in America: Best Law Firms Albuquerque (first tier rankings): administrative/regulatory

law, appellate practice, arbitration, banking and finance law, commercial litigation, corporate law, eminent domain and condemnation law, employment law: management, govern-ment relations practice, health care law, insurance law, labor law: management, land use and zoning law, legal malpractice law: defendants, leveraged buyouts and private equity law, litigation: banking and finance, litigation: first amendment, litigation: labor and employment, litigation: land use and zon-ing, litigation: patent, litigation: real estate, litigation: tax, mass tort litigation/class actions: defendants, mediation, medical malpractice law: defendants, mergers and acquisitions law, personal injury litigation: defendants, product liability litiga-tion: defendants, professional malpractice law: defendants, public finance law, real estate law, securities/capital markets law, tax law and trusts and estates law

Santa Fe (first tier rankings): administrative/regulatory law, arbitration, corporate law, energy law, financial services regula-tion law, mediation, mining law, Native American law, natural resources law, personal injury litigation: defendants and real estate law.

Atkinson & Kelsey, PABest Lawyers in America: Best Law Firms

Lewis Roca Rothgerber LLPBest Lawyers in America: Best Law Firms National Tier: commercial litigation, litigation: banking and

finance and litigation: real estate Albuquerque (first tier): litigation: real estate

Peacock Myers, PCBest Lawyers in America: Deborah Peacock, Jeffrey Myers and Janeen Vilven-DoggettBest Lawyers in America Lawyers of the Year: Deborah Peacock (patent litigation) and Jeffrey Myers (intel-

lectual property law litigation)

In MemoriamDonald D. Becker, loyal and dedicated husband, father and friend, died on Oct. 8. He was 68. Becker was known for his profes-sionalism and ability to be open-minded, devoted and considerate of others. He based his life aspirations on his favorite poem “The Desiderata.” His career as an attorney gave him meaning and purpose in life through helping others overcome the hardships of life. Becker’s dedication in the advancement of law could be realized in his volunteering

with numerous legal organizations. He enjoyed teaching law management as an adjunct professor at the University of New Mexico School of Law. Becker is survived by his wife, Jo Ann; son, Jason; grandchildren, Kaitlyn, Garrick, Dadge and Paige; and parents, Robert and Geraldine. He leaves behind many cherished aunts, uncles, nieces, nephews, cousins and friends. He was preceded in death by his brother, Richard; son, Douglas; and grandson, Camron.

Donald D. Becker



Three* $2,500 scholarships will be awarded to UNM School of Law third-year students, in memory of attorneys who have died

in the past 12 months. Families of the deceased attorneys will be recognized. The Senior Lawyers Division invites all State Bar

members to attend. UNM School of Law Deans, faculty, staff and students are encouraged to save the date.

R.S.V.P. to Heather Kleinschmidt, [email protected].

Second Annual Senior Lawyers Division

Attorney Memorial Scholarship Presentation

and Reception

Thursday, Nov. 19 • 5-7 p.m.State Bar Center

SENIOR LAWYERS DIVISION

*A third scholarship has been made available due to the generosity of the family of J.W. Neal and support from Estelle Read, wife of Stan Read.



RepoRt by DisciplinaRy counsel

DisciplinaRy QuaRteRly RepoRt

Final DecisionsFinal Decisions of the NM Supreme Court .................................5 Matter of Michael M. Carrasco, a disbarred attorney (Disciplin-

ary No. 07-2001-424) The New Mexico Supreme Court entered an order permanently disbarring Respondent from the practice of law. This matter was brought before the court on a motion for order to show cause and to be held in contempt of court for violating a previous order issued by the Court. Respondent shall not be permitted to meet with clients or collect money from clients even if employed by a lawyer. Respondent was further order to make restitution payments to former clients and provide all bank records to the disciplinary board.

Matter of John Michael Bowlin, Esq. (Disciplinary No. 01-2015-714) The New Mexico Supreme Court entered an order sus-pending Respondent from the practice of law for eighteen (18) months which was deferred upon certain terms and conditions contained in a conditional agreement. This matter was brought before the court on a trust account violation. Respondent was ordered to observe and comply with the Rules of Professional Conduct, have trust and operating accounts audited by an auditor approved by the Disciplinary Board, attend a CLE specifically on trust accounts, meet with a mentor selected by the Disciplinary Board to help maintain trust accounts, and was ordered to pay costs to the Disciplinary Board.

Matter of Brian L. Shoemaker, Esq. (Disciplinary No. 02-2015-715) The New Mexico Supreme Court entered an order suspending Respondent from the practice of law for eighteen (18) months which was deferred upon certain terms and conditions contained in a conditional agreement. This mat-ter was brought before the court on a trust account violation. Respondent was ordered to observe and comply with the Rules of Professional Conduct, have trust and operating accounts audited by an auditor approved by the Disciplinary Board, attend a CLE specifically on trust accounts, and pay costs to the disciplinary board.

Matter of Eric D. Dixon, Esq. (Disciplinary No. 10-2011-634) The New Mexico Supreme Court entered a public censure against Respondent which was published in the State Bar Bulletin, Volume 54 - Number 35, on September 2, 2015.

Matter of Troy W. Prichard (Disciplinary No. 07-2014-695) The New Mexico Supreme Court entered an order granting the petition to summarily suspend Respondent but suspended the order of suspension thereby allowing Respondent to practice under certain conditions which include requiring that Respondent practice only under the supervision of another attorney or within the Law Offices of the Public Defender, and prohibiting Respondent from having control over client trust funds.

Summary SuspensionsTotal number of attorneys summarily suspended ......................1

Administrative SuspensionsTotal number of attorneys administratively suspended .............1 Matter of George P. Marquez, Esq. (Disciplinary No. 07-2014-

694) New Mexico Supreme Court entered an order adminis-

tratively suspending Respondent from the practice of law for the failure to cooperate with Disciplinary Counsel.

Disability SuspensionsTotal number of attorneys placed on disability suspension ......0

Charges FiledCharges were filed against an attorney, who is not licensed in New Mexico, for allegations of communicating ex parte with a Judge in a pending proceeding and engaging in conduct that is prejudicial to the administration of justice.Charges were filed against an attorney for allegations of failing to provide competent representation to a client; representing one client who is directly adverse to another client; represent-ing clients when the representation is materially limited by the lawyer’s responsibilities to the other client; using information relating to the representation of a client to the disadvantage of the client without informed consent; bringing a proceeding with no basis in law that is frivolous and has no good faith for extension, modification or reversal of existing law; and violating the Rules of Professional Conduct.Charges were filed against an attorney for allegations of failing to promptly disburse funds that the client was entitled to receive; failing to maintain complete records of all client funds; making cash withdrawals from the IOLTA account; and failing to make reasonable efforts to ensure that the firm had in effect measures that gave reasonable assurance of compliance with Rule 17-204.Charges were filed against an attorney for allegations of failing to promptly disburse funds that the client was entitled to receive; failing to maintain complete records of all client funds; making cash withdrawals from the IOLTA account; and failing to make reasonable efforts to ensure that the firm had in effect measures that gave reasonable assurance of compliance with Rule 17-204.Charges were filed against an attorney for allegations of failing to hold property of clients or third persons separate from the lawyer’s own property and failing to keep complete records.

Petitions for Reciprocal Discipline FiledPetitions for reciprocal discipline filed .........................................0

Petitions for Reinstatement FiledPetitions for reinstatement filed ....................................................1 Jane E. Abrams, Esq., n.k.a. Jane E. Granier, Esq. (Disciplinary

No. 02-2013-663) Respondent petitioned for reinstatement from a suspension order. This matter is currently before the Disciplinary Board.

Formal ReprimandsTotal number of attorneys formally reprimanded ......................2 Matter of Yvonne K. Quintana, Esq. (Disciplinary No. 11-2014-

709) a Formal Reprimand was issued at the Disciplinary Board meeting of July 17, 2015, for the violation of Rule 16-101, failing to provide competent representation to a client; Rule 16-103, failing to represent your client diligently; Rule 16-302, failing to expedite litigation; and engaging in conduct that was prejudicial to the administration of justice. The Formal

Reporting Period: July 1–Sept. 30, 2015


Complaints ReceivedAllegations No. of ComplaintsTrust Account Violations .......................................................7Conflict of Interest ..................................................................0Neglect and/or Incompetence .............................................80Misrepresentation or Fraud .................................................15Relationship with Client or Court ......................................19Fees ............................................................................................5Improper Communications ...................................................2Criminal Activity ....................................................................0Personal Behavior .................................................................15Other .........................................................................................3Total number of complaints received ...............................146

Reprimand was published in the State Bar Bulletin issued August 12, 2015.

Matter of Thomas A. Pfarr, Esq. (Disciplinary No. 12-2014-710) a Formal Reprimand was issued at the Disciplinary Board meeting of July 17, 2015, for the violation of Rule 16-101, failing to recognize and fulfill the duties to a statu-tory Beneficiary; and Rule 16-107(A), failing to resolve the conflict with respect to the duties to the statutory beneficiary, failing to determine whether the statutory beneficiary had a legal guardian, and failing to take action according to the mandates of Leyba and Spencer. The Formal Reprimand was published in the State Bar Bulletin issued August 12, 2015.

Informal AdmonitionsTotal number of attorneys admonished .......................................1An attorney was informally admonished for failing to provide competent representation prematurely and arguably not in the cli-ent’s long term best interest although the client asked Respondent to act quickly but in doing so Respondent acted in violation of Rule 16-101of the Rules of Professional Conduct.

Letters of CautionTotal number of attorneys cautioned .........................................10Attorneys were cautioned for the following conduct: (1) general neglect (two letters of caution issued); (2) IOLTA overdraft (four letters of caution issued); (3) failure to communicate; (4) general misrepresentation to the Court; (5) failure to comply with Court order; and (6) general incompetence.


Legal EducationNovember

18 Default and Remedies Provisions in Commercial Leases

1.0 G Live Seminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

18 Choice of Entity for Nonprofits & Obtaining Tax Exempt Status

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

19 The New Lawyer—Rethinking Legal Services in the 21st Century

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

19 Preferred Returns, Preferences & Anti-Dilution Mechanisms in Business & Real Estate


20 Ethics, Remote Networks, The Cloud, Smart Phones and Working From Anywhere


24 Employment and Labor Law Institute

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

24 Representing Technology Start-ups in New Mexico: Navigating the Intellectual Property and Business Law Challenges


24 Legal Writing—From Fiction to Fact (Full Day)


24 2015 Ethicspalooza: All Those Fees 1.0 EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

24 Ethicspalooza: Proper Trust Accounting

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

30 Estate Planning for Digital Assets 1.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

December

1 Reciprocity in New Mexico 4.5 G, 2.5 EP Live Seminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

1 Ethics in Claims and Settlements 1.0 EP National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

2 Drafting Trust Distribution Clauses: Health, Education & Maintenance


3 2015 Real Property Institute 5.0 G, 1.0 EP Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

3 Tax Traps in Business Formations 1.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

3–4 Santa Fe Neighborhood Law Center Law And Policy For Neighborhoods Conference

10.0 G, 2.0 EP Santa Fe Convention Center Neighborhood Law Center www.sfnlc.com

4 The Trial Variety: Juries, Experts and Litigation

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

4 2015 Annual Civil Rights Seminar 5.5 G Albuquerque N.M. Defense Lawyers Association 505-797-6021 www.nmdla.org

8 2015 ‘s Best Law Office Technology, Software and Tools-Improve Client Service, Increase Speed and Lower Your Costs


















http://www.sfnlc.com


http://www.nmdla.org



Legal Education www.nmbar.org

December

8 Beyond Sticks and Stones (2015 Annual Meeting)

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

8 Judicial Panel Discussion (2015 Annual Meeting)

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

8 Invasion of the Drones: IP-Privacy, Policies, Profits (2015 Annual Meeting)


8 Criminal Procedure Update (2015 Annual Meeting)


8–9 Planning with Single Member LLCs, Parts 1–2


10 Trial Know-How Courtroom Skills from A to Z


10 Estate & Tax Planning for Estates Under the $10 Million Exemption Amount


11 Current Immigration Issues for the Criminal Defense Attorney


15 Get It Right—Use the Official Laws 2.0 EP Santa Fe Albuquerque 505-827-4821 www.nmcompcomm.us

15–16 Drafting and Reviewing Commercial Leases, Parts 1–2


16 Law Practice Succession—A Little Thought Now, A Lot Less Panic Later

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

17 Talking ‘Bout My Generation: Professional Responsibility Dilemmas Among Generations

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

17 What NASCAR, Jay-Z and The Jersey Shore Teach About Attorney Ethics


17–18 Ethics & Conflicts with Clients, Parts 1–2

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

18 Navigating New Mexico Public Land Issues


21 Drafting Stock Purchase Agreements


23 The Cybersleuth’s Guide to the Internet











http://www.nmcompcomm.us










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. 35,562 Scott v. New COA 34,556 10/16/15No. 33,979 State v. Suskiewich COA 33,979 10/16/15No. 35,559 State v. Shelby COA 34,682 10/15/15No. 35,558 State v. Hernandez COA 33,525 10/13/15No. 35,555 Flores-Soto v. Wrigley 12-501 10/09/15No. 35,554 Rivers v. Heredia 12-501 10/09/15No. 35,552 Spurlock v. N.M. Board of Examiners

for Architects COA 34,833 10/09/15No. 35,550 State v. Ben COA 33,921 10/07/15No. 35,546 State v. Lefthand COA 33,396 10/05/15No. 35,545 State v. Lemanski COA 33,846 10/05/15No. 35,544 State v. Trujeque COA 34,519 10/05/15No. 35,542 City of Roswell v. Marin COA 34,286 10/02/15No. 35,540 Fausnaught v. State 12-501 10/02/15No. 35,539 State v. Herrera COA 33,255 10/02/15No. 35,537 State v, Reyes COA 34,700 10/02/15No. 35,538 State v. Gallegos COA 34,689 10/02/15No. 35,535 State v. Herrera COA 33,078/33,255 09/29/15No. 35,532 Woody Investments v.

Sovereign Eagle COA 32,830 09/29/15No. 35,526 State v. Mitchell COA 34,573 09/24/15No. 35,525 State v. Ashley COA 32,974 09/23/15No. 35,523 McCoy v. Horton 12-501 09/23/15No. 35,522 Denham v. State 12-501 09/21/15No. 35,520 Deutsche Bank v. Huerta COA 34,337 09/21/15No. 35,519 State v. York COA 33,462 09/21/15No. 35,518 State v. Yanke COA 34,474 09/21/15No. 35,515 Saenz v.

Ranack Constructors COA 32,373 09/17/15No. 35,506 Alonso v. Hatch 12-501 08/31/15No. 35,495 Stengel v. Roark 12-501 08/21/15No. 35,480 Ramirez v. Hatch 12-501 08/20/15No. 35,479 Johnson v. Hatch 12-501 08/17/15No. 35,474 State v. Ross COA 33,966 08/17/15No. 35,422 State v. Johnson 12-501 08/10/15No. 35,466 Garcia v. Wrigley 12-501 08/06/15No. 35,454 Alley v. State 12-501 07/29/15No. 35,440 Gonzales v. Franco 12-501 07/22/15No. 35,422 State v. Johnson 12-501 07/17/15No. 35,416 State v. Heredia COA 32,937 07/15/15No. 35,415 State v. McClain 12-501 07/15/15No. 35,411 Tayler v. State 12-501 07/10/15No. 35,399 Lopez v. State 12-501 07/09/15No. 35,374 Loughborough v. Garcia 12-501 06/23/15No. 35,375 Martinez v. State 12-501 06/22/15No. 35,372 Martinez v. State 12-501 06/22/15No. 35,370 Chavez v. Hatch 12-501 06/15/15No. 35,369 Serna v. State 12-501 06/15/15No. 35,368 Griego v. Horton 12-501 06/15/15No. 35,353 Collins v. Garrett COA 34,368 06/12/15No. 35,335 Chavez v. Hatch 12-501 06/03/15No. 35,341 Martin v. State 12-501 05/28/15

No. 35,371 Pierce v. Nance 12-501 05/22/15No. 35,271 Cunningham v. State 12-501 05/06/15No. 35,266 Guy v. N.M. Dept. of

Corrections 12-501 04/30/15No. 35,261 Trujillo v. Hickson 12-501 04/23/15No. 35,217 Hernandez v. Horton 12-501 04/03/15No. 35,159 Jacobs v. Nance 12-501 03/12/15No. 35,106 Salomon v. Franco 12-501 02/04/15No. 35,097 Marrah v. Swisstack 12-501 01/26/15No. 35,099 Keller v. Horton 12-501 12/11/14No. 35,068 Jessen v. Franco 12-501 11/25/14No. 34,937 Pittman v.

N.M. Corrections Dept. 12-501 10/20/14No. 34,932 Gonzales v. Sanchez 12-501 10/16/14No. 34,881 Paz v. Horton 12-501 10/08/14No. 34,907 Cantone v. Franco 12-501 09/11/14No. 34,680 Wing v. Janecka 12-501 07/14/14No. 34,777 State v. Dorais COA 32,235 07/02/14No. 34,790 Venie v. Velasquz COA 33,427 06/27/14No. 34,775 State v. Merhege COA 32,461 06/19/14No. 34,706 Camacho v. Sanchez 12-501 05/13/14No. 34,563 Benavidez v. State 12-501 02/25/14No. 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 11/28/12No. 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 07/12/12No. 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. 33,877 State v. Alvarez COA 31,987 12/06/12 No. 33,930 State v. Rodriguez COA 30,938 01/18/13No. 34,363 Pielhau v. State Farm COA 31,899 11/15/13No. 34,274 State v. Nolen 12-501 11/20/13No. 34,443 Aragon v. State 12-501 02/14/14No. 34,522 Hobson v. Hatch 12-501 03/28/14No. 34,582 State v. Sanchez COA 32,862 04/11/14No. 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. 34,784 Silva v. Lovelace Health

Systems, Inc. COA 31,723 08/01/14No. 34,728 Martinez v. Bravo 12-501 10/10/14No. 34,812 Ruiz v. Stewart 12-501 10/10/14No. 34,830 State v. Mier COA 33,493 10/24/14No. 34,929 Freeman v. Love COA 32,542 12/19/14No. 35,063 State v. Carroll COA 32,909 01/26/15No. 35,016 State v. Baca COA 33,626 01/26/15No. 35,130 Progressive Ins. v. Vigil COA 32,171 03/23/15No. 35,101 Dalton v. Santander COA 33,136 03/23/15

Effective October 16, 2015


Writs of CertiorariNo. 35,148 El Castillo Retirement Residences v.

Martinez COA 31,701 04/03/15No. 35,198 Noice v. BNSF COA 31,935 05/11/15No. 35,183 State v. Tapia COA 32,934 05/11/15No. 35,145 State v. Benally COA 31,972 05/11/15No. 35,121 State v. Chakerian COA 32,872 05/11/15No. 35,116 State v. Martinez COA 32,516 05/11/15No. 34,949 State v. Chacon COA 33,748 05/11/15No. 35,298 State v. Holt COA 33,090 06/19/15No. 35,297 Montano v. Frezza COA 32,403 06/19/15No. 35,296 State v. Tsosie COA 34,351 06/19/15No. 35,286 Flores v. Herrera COA 32,693/33,413 06/19/15No. 35,255 State v. Tufts COA 33,419 06/19/15No. 35,249 Kipnis v. Jusbasche COA 33,821 06/19/15No. 35,248 AFSCME Council 18 v. Bernalillo

County Comm. COA 33,706 06/19/15No. 35,214 Montano v. Frezza COA 32,403 06/19/15No. 35,213 Hilgendorf v. Chen COA 33056 06/19/15No. 35,279 Gila Resource v. N.M. Water Quality Control

Comm. COA 33,238/33,237/33,245 07/13/15No. 35,289 NMAG v. N.M. Water Quality Control

Comm. COA 33,238/33,237/33,245 07/13/15No. 35,290 Olson v. N.M. Water Quality Control

Comm. COA 33,238/33,237/33,245 07/13/15No. 35,349 Phillips v. N.M. Taxation and

Revenue Dept. COA 33,586 07/17/15No. 35,302 Cahn v. Berryman COA 33,087 07/17/15No. 35,318 State v. Dunn COA 34,273 08/07/15No. 35,386 State v. Cordova COA 32,820 08/07/15No. 35,278 Smith v. Frawner 12-501 08/26/15No. 35,398 Armenta v.

A.S. Homer, Inc. COA 33,813 08/26/15No. 35,427 State v.

Mercer-Smith COA 31,941/28,294 08/26/15No. 35,446 State Engineer v.

Diamond K Bar Ranch COA 34,103 08/26/15No. 35,451 State v. Garcia COA 33,249 08/26/15No. 35,438 Rodriguez v.

Brand West Dairy COA 33,104/33,675 08/31/15No. 35,426 Rodriguez v.

Brand West Dairy COA 33,675/33,104 08/31/15No. 35,499 Romero v.

Ladlow Transit Services COA 33,032 09/25/15No. 35,456 Haynes v. Presbyterian

Healthcare Services COA 34,489 09/25/15No. 35,437 State v. Tafoya COA 34,218 09/25/15No. 35,395 State v. Bailey COA 32,521 09/25/15

Certiorari Granted and Submitted to the Court:

(Submission Date = date of oralargument or briefs-only submission) Submission DateNo. 33,969 Safeway, Inc. v.

Rooter 2000 Plumbing COA 30,196 08/28/13No. 33,884 Acosta v. Shell Western Exploration

and Production, Inc. COA 29,502 10/28/13

No. 34,146 Madrid v. Brinker Restaurant COA 31,244 12/09/13

No. 34,093 Cordova v. Cline COA 30,546 01/15/14No. 34,287 Hamaatsa v.

Pueblo of San Felipe COA 31,297 03/26/14No. 34,546 N.M. Dept. Workforce Solutions v.

Garduno COA 32,026 08/13/14No. 34,613 Ramirez v. State COA 31,820 12/17/14No. 34,548 State v. Davis COA 28,219 01/14/15No. 34,549 State v. Nichols COA 30,783 02/25/15No. 34,798 State v. Maestas COA 31,666 03/25/15No. 34,637 State v. Serros COA 31,975 04/13/15No. 34,630 State v. Ochoa COA 31,243 04/13/15No. 34,789 Tran v. Bennett COA 32,677 04/13/15No. 34,668 State v. Vigil COA 32,166 08/10/15No. 34,974 Moses v. Skandera COA 33,002 08/12/15No. 34,997 T.H. McElvain Oil & Gas v.

Benson COA 32,666 08/24/15No. 34,993 T.H. McElvain Oil & Gas v.

Benson COA 32,666 08/24/15No. 34,726 Deutsche Bank v.

Johnston COA 31,503 08/24/15No. 34,826 State v. Trammel COA 31,097 08/26/15No. 34,866 State v. Yazzie COA 32,476 08/26/15No. 35,049 State v. Surratt COA 32,881 10/13/15No. 35,035 State v. Stephenson COA 31,273 10/15/15No. 35,478 Morris v. Brandenburg COA 33,630 10/26/15No. 34,946 State v. Kuykendall COA 32,612 11/12/15No. 34,945 State v. Kuykendall COA 32,612 11/12/15

Opinion on Writ of Certiorari:

Date Opinion FiledNo. 34,995 State v. Deangelo M. COA 31,413 10/15/15

Writ of Certiorari Quashed:

Date Order FiledNo. 33,898 Bargman v. Skilled Healthcare

Group, Inc. COA 31,088 10/15/15

Petition for Writ of Certiorari Denied:

Date Order FiledNo. 35,509 Bank of New York v.

Borrego COA 33,988 10/16/15No. 35,269 Peterson v. Ortiz 12-501 10/15/15No. 35,517 State v. Lopez COA 34,166 10/13/15No. 35,513 State v. Wyatt B. COA 33,297 10/13/15No. 35,505 Wild Horse Observers v.

N.M. Livestock Board COA 34,097 10/13/15No. 35,504 Wild Horse Observers v.

N.M. Livestock Board COA 34,097 10/13/15No. 35,262 Sena v. Board of Finance 12-501 10/13/15No. 35,260 Duran v. Frawner 12-501 10/13/15


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

Mark Reynolds, Chief Clerk New Mexico Court of Appeals PO Box 2008 • Santa Fe, NM 87504-2008 • 505-827-4925

Effective November 6, 2015Published Opinions

No. 32824 12th Jud Dist Lincoln CV-09-275, BAC HOME LOANS v S SMITH (reverse and remand) 11/04/2015

Unublished Opinions

No. 34821 1st Jud Dist Santa Fe CV-10-29, A FIRSTENBERG v R LEITH (dismiss) 11/02/2015No. 33440 11th Jud Dist San Juan CV-12-1195-1, TAL REALTY v SAN ANGELO (affirm) 11/02/2015No. 34795 5th Jud Dist Eddy JQ-13-28, CYFD v ERNIE O (affirm in part and remand) 11/02/2015No. 34390 2nd Jud Dist Bernalillo LR-13-13, STATE v M BACA (affirm) 11/03/2015No. 34355 2nd Jud Dist Bernalillo CR-07-3296, STATE v E GARDUNO (affirm) 11/03/2015No. 34555 2nd Jud Dist Bernalillo PQ-14-168, IN THE MATTER OF SOFIA Q (affirm) 11/03/2015No. 34265 3rd Jud Dist Dona Ana CR-03-126, STATE v F COSTELON (affirm) 11/04/2015No. 34565 12th Jud Dist Otero CR-13-544, STATE v J VENEGAS (affirm in part, reverse in part and remand) 11/04/2015

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

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 Oct. 30, 2015

Clerk’s Certificate of Address and/or

Telephone Changes

John Milton BlackSchiffer Odom Hicks & Johnson PLLC700 Louisiana Street, Suite 2650Houston, TX 77002713-357-5150713-357-5160 (fax)[email protected]

Evan C. BlackstoneU.S. Department of the InteriorOffice of the Solicitor, Southwest Region505 Marquette Avenue NW, Suite 1800Albuquerque, NM 87102505-248-5606505-248-5623 (fax)[email protected]

Dawn Chavez Branch715 Marquette Avenue NWAlbuquerque, NM 87102505-764-9710505-764-9722 (fax)[email protected]

Dominique Cartron6020 Academy Road NE, Suite 100Albuquerque, NM [email protected]

Joel Cruz-EsparzaCruz-Esparza Law Firm, LLC201 Third Street NW, Suite 500Albuquerque, NM 87102505-944-9060505-944-9091 (fax)[email protected]

Kendrick Winsor DaneDane Law Firm, PC1005 Marquette Avenue NWAlbuquerque, NM [email protected]

Verlin Hughes Deerinwater6200 Wilson Blvd., Apt. 419Falls Church, VA [email protected]

Richard Brooks Dulany Jr.Law Office of Richard B. Dulany, Jr.PO Box 782524San Antonio, TX 78278210-373-2303210-444-9070 (fax)[email protected]

Michael HoeferkampMichael D. Hoeferkamp PC8205 Spain Road NE, Suite 201Albuquerque, NM [email protected]

Peter James HoranFrazier Law Office1110 Pennsylvania Street NE, Suite CAlbuquerque, NM 87110505-830-6563505-288-3448 (fax)[email protected]

Jose A. Howard-GonzalezKemp Smith LLP221 N. Kansas, Suite 1700El Paso, TX 79901915-533-4424915-546-5360 (fax)[email protected]

Joann Keleher6016 McLeod Road NEAlbuquerque, NM [email protected]

Taylor LieuwenNew Mexico Divorce and Custody Law LLC2727 San Pedro NE, Suite 114Albuquerque, NM [email protected]

Georgene LouisIsleta Gaming Regulatory Agenty11000 Broadway SEAlbuquerque, NM [email protected]

Lisa Tourek Mack3100 Utah Street NEAlbuquerque, NM [email protected]

James Walton Mitchell IIIGauntt Koen Binney Woodall & Kidd, LLP1400 Woodloch Forest Drive, Suite 575The Woodlands, TX 77380281-367-6555281-367-3705 (fax)[email protected]

Josett Daisy MonetteNew Mexico Legal Aid, Inc.PO Box 817Bernalillo, NM 87004505-867-3391505-552-3004 (fax)[email protected]

Mariel NanasiNew Energy Economy343 E. Alameda StreetSanta Fe, NM 87501505-989-7262mariel@ seedsbeneaththesnow.com

Michael T. NewellNewell Law Firm, LLC10 W. Adams Avenue, Suite ELovington, NM 88260575-739-6395855-494-0059 (fax)[email protected]

Brendan O’ReillyLaw Office of Mel B. O’Reilly LLC817 La Veta Drive NEAlbuquerque, NM [email protected]

Rose OsborneLaw Offices of the Public Defender505 Marquette Avenue NW, Suite 120Albuquerque, NM 87102505-369-3575505-796-4612 (fax)[email protected]

Lily C. Richardson3602 E. Campbell AvenuePhoenix, AZ 85016602-350-7160602-288-3134 (fax)[email protected]

Stephen C. RossBasham & Basham, PC2205 Miguel Chavez Road, Suite ASanta Fe, NM 87505505-988-4575505-992-6170 (fax)[email protected]

Emma D. B. Weber159 Mesa Verde RoadJemez Springs, NM [email protected]

Jacob A. GarrisonThe Garrison Law Firm, LLC10600 Menaul Blvd. NE, Suite CAlbuquerque, NM 87112505-417-4799505-214-5764 (fax)[email protected]

Jocelyn Amelia Garrison906 Peach CircleTularosa, NM [email protected]

Christina Bartosh GoodrowChristina Bartosh Goodrow, Attorney at Law, LLC3949 Corrales Road NW, Suite 205Corrales, NM 87048505-239-9228505-899-4060 (fax)[email protected]



























Clerk’s Certificates

Carol Graebner2429 Bissonnet Street #314Houston, TX [email protected]

Stephanie Yvette LopezLaw Office of S. Lopez, LLCPO Box 68028Albuquerque, NM [email protected]

Mark A. SmithPO Box 2283Tijeras, NM [email protected]

Charles T. Stoll2546 Koa AvenueMorro Bay, CA 93442

Kay Ann Connelly Tyssee1535 Teramo StreetHenderson, NV [email protected]

Jack Wolter Withem8100 Barstow Street NE #24204Albuquerque, NM [email protected]

Walter Kenneth Martinez Jr.Walter K. Martinez Law OfficePO Box 730310 W. High StreetGrants, NM 87020505-287-8801505-287-4877 (fax)[email protected]

Pilar L. MurrayMurray Law FirmPO Box 717El Prado, NM [email protected]

Daniel Zane SwankJay Goodman & Associates Law Firm, PC2019 Galisteo, Suite C-3Santa Fe, NM 87505505-989-8117505-639-5853 (fax)[email protected]

Thomas L. JohnsonJohnson Law Firm, LC111 Lomas Blvd. NW, Suite 205Albuquerque, NM 87125505-243-4549505-243-4323 (fax)[email protected]

Ethan Samuel SimonEthan Simon Esq LLCPO Box 40337Albuquerque, NM 87196505-288-8408505-639-4277 (fax)[email protected]

Christopher P. Bauman ([email protected])Mark Clinton Dow ([email protected])Maria Rebecca Osornio ([email protected])Deborah R. Stambaugh ([email protected])Bauman Dow & Stambaugh, PCPO Box 306847309 Indian School Road NE (87110)Albuquerque, NM 87190505-883-3191505-883-3194 (fax)

Clerk’s Certificate of Change to Inactive

Status

Effective October 16, 2015:Brian Edward Harris224 Las Mananitas StreetSanta Fe, NM [email protected]

Effective October 21, 2015:Sharon B. HawkPO Box 1338Placitas, NM 87043

Effective October 17, 2015:Marin J. Kowal6601 Tennyson Street NE, Apt. 7108Albuquerque, NM [email protected]

Clerk’s Certificate of Admission

On October 27, 2015:Tammy L. HawleyPO Box 18682116 Westridge Road (88220)Carlsbad, NM 88221 [email protected]

On October 27, 2015:William A. Hilsman2300 E. Cary Street #223Richmond, VA [email protected]

On November 3, 2015:David KerbyThompson & Kerby Law OfficesPO Box 651504219 85th Street (79423)Lubbock, TX 79464806-793-7600806-793-6882 (fax)[email protected]

On October 27, 2015:Kevin J. KuhnWheeler Trigg O’Donnell LLP370 Seventeenth Street, Suite 4500Denver, CO 80202303-244-1841303-244-1879 (fax)[email protected]

On November 3, 2015:Carlos RinconRincon Law Group, PC1014 N. Mesa, Suite 200El Paso, TX 79902915-532-6800915-532-6808 (fax)[email protected]

On November 3, 2015:Camie WadeThompson & Kerby Law OfficesPO Box 651504219 85th Street (79423)Lubbock, TX 79464806-793-7600806-793-6882 (fax)[email protected]

On November 3, 2015:Robert H. WillisBob Willis Law, PLLC2733 N. Power Road, Suite 102, #305Mesa, AZ [email protected]

On October 27, 2015:Wyatt WrightWayne Wright LLP5707 W. Interstate 10San Antonio, TX 78201210-785-3949210-734-9965 (fax)[email protected]

























New Mexico Lawyer - November 2015 1

LawyerN E W M E X I C O

November 2015 Volume 10, No. 4 www.nmbar.org

Current Issues in Bankruptcy Law

Bankruptcy Law Section


2 New Mexico Lawyer - November 2015

C E R T I F I E D P U B L I C A C C O U N T A N T S

O V E R 2 5 Y E A R S O F

A C C O U N T I N G

E X P E R I E N C E W I T H

T H E N E W M E X I C O

P R O F E S S I O N A L

B U S I N E S S C O M M U N I T Y

J N I C K L E I T C H . C O M 5 0 5 . 8 8 4 . 8 7 4 4

E X P E R I E N C E D

T R U S T W O R T H Y

R E L I A B L E

PA R T N E R

T A X P L A N N I N G & P R E P A R A T I O N I A C C O U N T I N G & B O O K K E E P I N G

P A Y R O L L P R O C E S S I N G I B U S I N E S S S T A R T U P & E V O L U T I O N


The United States bankruptcy system is a wonderful thing, and no, I’m not saying that because I

make a living as a bankruptcy attorney and Chapter 7 panel trustee. Nor do I mean to imply that individuals’ financial crises are wonderful things, as they clearly are not. Rather, a bankruptcy system offering people in difficult financial situations an opportunity for a fresh start is a wonderful thing. Our system is far from perfect, but it should not be taken for granted, as we must be mindful that in some countries, such as China, there is no similar legal mechanism to assist individuals experiencing a financial crisis.

The main goal of a Chapter 7 bankruptcy is usually to obtain a discharge of pre-petition debts under 11 U.S.C. § 524. However, in order to obtain the benefit of the discharge injunction, the system requires a full, complete, and accurate disclosure of any and all property interests. If debtors fail to make a full, complete, and accurate disclosure of all of their property interests, they are exposed to serious risks. Such risks include losing the ability to claim an asset or cause of action exempt1, losing the right to pursue a claim against third party, having the discharge denied or revoked, and even potential criminal charges for intentional nondisclosure.

Given the numerous and very serious consequences for failing to disclose assets, debtors’ attorneys must be vigilant in ensuring their clients make a full, complete, and accurate disclosure of property interests. Commencement of a bankruptcy case creates a bankruptcy estate. This estate is vast and is comprised of all legal or equitable interests of the debtor in property as of the date of filing. These interests include claims against third parties, contract rights, life estates, remainder interests, and even contingent, unliquidated, or disputed interests. Property of the estate also includes any interests in certain property that the debtor acquires or becomes entitled to acquire within 180 days after filing a bankruptcy, such as a bequest, devise, or inheritance, or as a beneficiary of a life insurance policy or death benefit plan. Most, but not all of the time, debtors successfully disclose the full extent of their interests in real property, vehicles, bank accounts, and tangible personal

property. These items are generally foremost in one’s mind, and are usually the first things debtors think of when disclosing assets.

The more common omissions from debtors’ disclosures are typically some type of claim against a third party, such as breach of contract or personal injury claim, or a partial interest in real property or an inheritance. Failing to disclose a claim against a third party in a bankruptcy can result in the loss of the debtors’ right to pursue such claim at a later date or their right to claim an exemption in such claim. For example, in 2013, I was the assigned trustee in a Chapter 7 bankruptcy case2 where the debtors had entered into a pre-petition contract for services, paid $5,000 for the services, and subsequently filed for Chapter 7 bankruptcy protection prior to the services being rendered. Pursuant to the terms of the contract, the services were to have been provided to the debtors a couple months before the bankruptcy was filed. When they were not, the parties entered

into a settlement agreement extending the time for the services to be provided. Under the settlement, the services were to be provided a few months after the bankruptcy was filed.

In the bankruptcy case, the debtors did not list the contract right in their schedules or disclose any claim or reason to sue anyone when asked under oath at the first meeting of creditors. At the time of the meeting of creditors, the services were due to be provided in approximately three weeks, pursuant to the terms of the settlement agreement. However, I was not made aware of this contract, the settlement agreement, or the debtor’s interest in the contract. After the creditors’ meeting, I determined there were no known assets to administer and filed a “no asset” report in the case. Shortly thereafter, the case was closed by the clerk.

The Grave Importance of a Debtor’s Disclosure in Bankruptcy

By Edward A. Mazel

... a bankruptcy system offering people in difficult financial

situations an opportunity for a fresh start is a wonderful thing.


Approximately three weeks after the creditors meeting, and only two days after the services were due under the settlement agreement, the debtors commenced a lawsuit against the other contracting party for failing to provide the services. The lawsuit resulted in a judgment in the debtors’ favor. Subsequently, I received a call from an attorney for the judgment debtor, who had learned of the debtors’ bankruptcy, and who inquired as to whether the debtors had disclosed the claim in their bankruptcy. After reviewing the case and the creditors’ meeting transcript, and determining the debtors had failed to disclose their interest in the contract, I moved to reopen the bankruptcy case so I could seek to enforce the estate’s contract rights. Since the debtors’ rights in the contract were not disclosed, those rights remained property of the bankruptcy estate even after the case was closed, because the general rule is that only disclosed assets not pursued by the trustee are abandoned back to a debtor upon the closing of a case. As a result of the debtors’ failure to disclose this interest, they did not have standing to bring their lawsuit and the judgment they obtained was void.

Once the case was reopened, I was able to reach a settlement with the party on the other end of the contract, and sought court approval of the settlement. In response, the debtors objected to the settlement, filed amended schedules listing their interest in the contract and/or claim against the other party, and asserted an exemption for the full amount of the claim. I objected to the debtors’ newly-claimed exemption and the Bankruptcy Court held a final evidentiary hearing on the settlement motion and objection to the debtors’ exemption. The Court found that a debtor’s ability to amend its exemptions as a matter of right ends at case closure, but that a court may allow an amendment in a reopened case if the debtor can show excusable neglect. The Court determined the debtors’ failure to disclose their interest in the contract, or potential claim, was a result of neglect. The Court then analyzed whether the neglect was excusable, and considered the following factors: (i) the danger of prejudice to the nonmoving party, (ii) the length of the delay and its potential impact on judicial proceedings, (iii) the reason for

the delay, including whether it was within the reasonable control of the movants, and (iv) whether the movant acted in good faith. The Court determined that these factors did not carry equal weight, and put the most weight on the reason for the delay and whether the movant was at fault. The Court determined the debtors’

neglect was not excusable, finding three of the four factors weighed against the debtors, and the fourth factor, good faith, to be neutral. In sum, the debtors lost their right to pursue the claim, simply because they failed to disclose their interest in the contract and/or claim against the contracting party. Unfortunately, in my short three-year tenure as a Chapter 7 trustee, I have come across this situation quite often.

The consequences of failing to disclose a property interest also extend well beyond the potential loss of a debtor’s ability to pursue a claim or claim an exemption, and in some instances can give rise to a denial or revocation of a debtor’s discharge under 11 U.S.C. § 727. In the case mentioned above, I did not believe the debtors’ failure to disclose the contract was intentional, and based on the testimony given by the debtors, was satisfied that sufficient grounds did not exist to attempt to revoke the debtors’ discharge. However, if I had believed the debtor had intentionally failed

to disclose a property interest, I likely would have pursued a denial or revocation of the discharge.

In order to ensure that debtors make a full, complete, and accurate disclosure, I encourage attorneys to personally review their client’s schedules and statement of financial affairs one question at a time with their client prior to filing. Additionally, I have found it very helpful in my own practice to develop a set of questions or checklists that may elicit disclosure of some of the

more abstract or intangible property rights. The schedules and statement of financial affairs are lengthy, and in my experience most debtors don’t fully understand what is being asked of them. Debtors need the assistance of counsel to carefully review their schedules and make a full, complete, and accurate disclosure.

Lastly, defense attorneys may also benefit in investigating whether a plaintiff has filed a bankruptcy, and if so, determining whether the claim the debtor is pursuing arose prior to, or after, the bankruptcy was filed. If the claim or property interest arose prior to the petition, and the debtor failed to disclose such property interest or claim, the debtor may lack standing to pursue the claim, giving the defendant a strong defense to the debtor’s pursuit of that claim. __________________________Endnotes 1 Exemptions allow debtors to retain a certain amount of equity in real and personal property regardless of the extent or amount of creditors’ claims. In New Mexico, bankruptcy debtors may elect either the (i) New Mexico exemption scheme found in NMSA 1978, § 42-10-1 et seq., or (ii) Bankruptcy Code exemption scheme found in 11 U.S.C. § 522(d). 2 In re Smith, 2014 WL 7358808 (Bankr. D.N.M. Dec. 24, 2014)

Edward A. Mazel’s practice is concentrated on Chapter 11 bankruptcies, creditor’s rights, landlord/tenant disputes, and commercial litigation. In 2012, Mazel was appointed to the Chapter 7 Bankruptcy Trustee Panel for the District of New Mexico and continues to serve in such capacity. Mazel serves on the Board of Directors and as president-elect of the State Bar of New Mexico Bankruptcy Law Section.

The consequences of failing to disclose a property interest also

extend well beyond the potential loss of a debtor’s ability to pursue a

claim or claim an exemption ...


Although he’s never filed a personal bankruptcy, Donald Trump is no stranger to Chapter 11 and the

opportunities it offers over-leveraged and struggling companies to get back on their feet. Bankruptcy does not necessarily mean the death of a company. Rather, it’s a tool that can offer breathing room—protections that allow all the players in a company’s financial life to come into a single forum to be treated fairly and appropriately. Under the protection of the Bankruptcy Code, businesses can sell assets free and clear of liens, assume or reject leases, and restructure or discharge debts. Chapter 11 isn’t just for the too-big-to-fail crowd. It can help enterprises of modest size survive downturns and thrive into the future.

Learning from TrumpDonald Trump is a successful real estate developer who transformed a modest inheritance into a much greater fortune by using all the financial and political tools available to build and maintain his wealth—including four significant business bankruptcies. 1 While Trump’s political opponents have used perceived negative attitudes about bankruptcy against him, he argues that he has simply taken advantage of laws available to all businesses.2 But, whatever one thinks of Trump the politician or Trump the entertainer, lawyers should resist the urge to paint him with a scarlet “B.” Why? Because Chapter 11 bankruptcy provides some of the most effective and powerful tools supporting entrepreneurs in America today.3

While no private New Mexico businesses may operate on the level of Trump’s casinos, the available bankruptcy tools are identical. As New Mexico’s economy regains footing, businesses that want to survive into better times should heed the lessons bigger companies have long known—Chapter 11 bankruptcy offers an effective set of tools for bridging the path to a profitable future. For example, Trump’s New Jersey casinos used Chapter 11 to stop foreclosures and other collection actions, restructure high-interest

By Thomas D. Walker and Leslie D. Maxwell

debt, eliminate unsecured debt, and to pressure organized labor into more favorable terms. Although he lost most if not all of his personal investment, each bankruptcy provided Trump’s companies with valuable relief available only in bankruptcy.

Many Business Problems can be Resolved in Chapter 11In Chapter 11, businesses can continue operating despite significant financial problems, such as unsecured debt that the business cannot continue to pay as agreed; secured debts that exceed the value of the collateral and cannot be paid under current circumstances; unproductive or unnecessary real or personal property, including excessive equipment, unprofitable locations and expensive or over-market leases; and, other financial obligations that inhibit continued profitable operations.

Good Candidates for Chapter 11Generally, businesses that have a reasonable chance of a successful reorganization require positive cash flow sufficient to pay post-petition operating expenses. These costs can include payroll, payroll taxes, costs of goods, supplies and maintenance, utilities, rent, and insurance. Secured creditors’ interests must be protected, which often requires post-petition payments. Ultimately, a business must generate sufficient cash flow to pay for its operations and make payments on pre-petition debts great enough to

get the support of its creditors or meet

criteria for imposing a judicially-ordered repayment plan on its creditors.

Sometimes lack of cash can be overcome. Businesses that do not have sufficient cash flow may be able to borrow money to continue basic operations through a reorganization if circumstances are right and a willing lender is available. Lenders may negotiate favorable terms and controls that would be unlikely outside of bankruptcy. Carefully structured post-petition loans often include regular access to and close scrutiny of books and records, specific financial and performance reporting requirements, enhanced collateral positions and protections, advanced priority for repayment, and other creative loan terms, so long as they are arguably beneficial to the business and other creditors. Post-petition financing is often part of a package of reforms available only in bankruptcy that give the company a chance to survive, and in the process, enhance the prospects for paying some portion of pre-petition debts.

Other Companies That May BenefitSingle-purpose entities formed to own and operate commercial real estate can benefit from bankruptcy reorganization. Many have negative net-worth or face negative cash flows due to the depressed commercial real estate market. Such entities can reduce the principal balance on commercial real estate loans and revise repayment terms to better fit the economic

A Lifeline for Distressed Companies


reality. This is particularly true of income-producing properties.

Individual persons and married couples are often candidates for Chapter 11 reorganizations, particularly in New Mexico where so many businesses are sole proprietorships. Sometimes this is because the individuals have debts or assets that make them ineligible or poor candidates for bankruptcies under Chapter 7 or Chapter 13, while on other occasions prospective petitioners are attracted to Chapter 11 because of the useful tools it offers.

Bankruptcy Tools to ConsiderThe planning and reorganization provisions available in Chapter 11 are made possible in many instances by the general protections and tools bankruptcy provides. They include: • Automatic Stay. One of the most

important and powerful tools is the automatic stay upon filing of a bankruptcy petition. The automatic stay is a statutory injunction that temporarily stops most collection and enforcement actions and gives the filer a “breathing spell” to stay in business while moving forward with a reorganization plan. The stay applies to most lawsuits, foreclosures, repossessions, garnishments, contract enforcement and collection actions. The stay permits a business to defer payment on some obligations while it continues to use its assets, remain in business, and attempt to reorganize. This allows a company the opportunity to preserve going concern value for a reorganization or an organized sale of the going concern. Bankruptcy can preserve the basic business operation, name and goodwill, and retain customers that are often lost in a foreclosure, lock-out, or piecemeal liquidation.

• Sell property free and clear of liens and interests. Chapter 11 debtors can sell assets free of claims, liens and interests of all kinds. This tool is arguably the most powerful of those available to the Chapter 11 debtor. These so-called “363 Sales” (named after the governing Bankruptcy Code section) can be accomplished through a Chapter 11 plan or, with increasing approval, absent a confirmed plan. Buyers get clean title to property, while the liens and interests attach to the proceeds, under the protection of a federal court order.

• Subordinate debt and adjust interest rates. In some cases, Chapter 11 debtors can recharacterize undersecured debt and eliminate or subordinate the unsecured portion. Secured creditors may agree or be compelled to reduce secured debt to an amount equal to the value of their collateral. Other creditors may support the reorganization because they may get more than they would get in a liquidation. Sometimes unsecured debt is converted into an equity interest with a chance of having future value. Also, excessive or over-market interest rates on debts secured by personal and real property can be restated to better reflect market conditions and generally make the success of reorganization more likely.

• Cure defaults and accelerated debts. Chapter 11 debtors can cure defaults on contracts, including mortgages and leases. This permits debtors to return to pre-default terms, reverse default penalties, and get back in good standing with creditors. Similarly, in some instances, Chapter 11 debtors can negotiate extended payment terms on past due, unsecured tax debts.

• Assume or reject executory contracts and unexpired leases. Chapter 11 debtors may be able to reject certain equipment leases, real estate leases, or other unfulfilled contracts, and assume the obligations on others. Unprofitable locations and unproductive equipment may be returned to the lessors in order to improve cash flow and restore profitability. Multi-location businesses can consolidate operations into the most efficient structure; retail businesses can close unproductive locations and focus on those that generate profits.

• Avoidance and recovery actions. The Chapter 11 debtor has the power to avoid and recover certain pre-petition, preferential or fraudulent transfers. Avoidance actions can recover assets transferred or undo liens to free up assets for sale or use as additional loan collateral.

ConclusionNo business, large or small, wants to find itself looking to the “last resort” of the bankruptcy laws for help. In these hard economic times, a company of any size need not find itself without recourse for survival. The tools of the Bankruptcy Code, if wielded early and appropriately,

can set many companies on the road to recovery.

_______________________Endnotes 1 Mr. Trump’s inheritance and current fortune are subjects of debate beyond the scope of this article. 2 Under his watch, Trump’s New Jersey casinos filed four bankruptcies, in 1991, 1992, 2004 and 2009. On the first three filings, Trump was not despondent. “I don’t think it’s a failure, it’s a success,” Trump reportedly said at the time. (Associated Press 11/22/04.) Trump discussed the bankruptcy filings in positives terms: “We have one of the most powerful gaming companies the day it comes out (of bankruptcy). There’s no way we could have done that without the ’B’ word,” he said. “The future looks very good.” Trump did not describe the 2009 filing as a success, however. 3 Bankruptcy is typically not a positive event in the life of a company or in the community it occupies. It is complicated, expensive, detail intensive and arduous for those charged with making it happen. It can be very hard on employees, suppliers and investors. It is often the “last resort,” and for good reason. People lose jobs and suppliers go unpaid. But oftentimes such consequences would have happened anyway. If considered carefully and early enough (before too much damage is done), Chapter 11 bankruptcy can point in the direction of business survival, job preservation and one less empty local building. This article is not about the complicated “mechanics” of a Chapter 11. It is about the possibilities United States Code Title 11 offers to the struggling or failing business and for the lawyers who are asked, “What can we do?”

Thomas D. Walker is a partner at Walker & Associates PC where he practices in the areas of bankruptcy, business transactions, commercial law and litigation, real estate law and foreclosure. He attended Tulane University and the University of New Mexico School of Law. He is a current board member and past chair of the State Bar of New Mexico Bankruptcy Law Section.

Leslie D. Maxwell practices primarily in bankruptcy and commercial law at Walker & Associates PC. She received a Bachelor of Arts in Anthropology from Emory University in 2003 and her Juris Doctor from the University of New Mexico School of Law in 2006. Maxwell is on the Board of Directors of the State Bar of New Mexico Bankruptcy Law Section.


Before the 2007 financial crisis, second mortgages, and even third mortgages, were common, as many

homeowners realized they could tap into their often substantial home equity to acquire loans to pay off unsecured debt, take vacations, and fund other projects. However, the significant decline in home values over the last several years has often erased the equity homeowners had in their homes. Coupled with the decline in the economy, which has caused many to lose their jobs, the result is that many homeowners are unable to sell their homes and are unable to pay the first mortgage, let alone a second or third mortgage. These unfortunate circumstances have forced a number of homeowners to seek help from various resources, including requesting bankruptcy relief. This article will examine what, after Caulkett, a homeowner may do or not do under Chapter 7 and Chapter 13 of the Bankruptcy Code to void a second lien on a primary residence, when the homeowner is “underwater” on his/her mortgage. That is, when the amount owed on the first lien exceeds the value of primary residence. Reference to the homeowner as being “underwater” on the mortgage will be used throughout this article.

Chapter 7 or Chapter 13?Homeowners who are underwater on their homes generally seek relief under either Chapter 7 or Chapter 13 of the

Bankruptcy Code. When the debtor wants to “save the house,” Chapter 13 is selected. Under Chapter 13, the debtor can keep the residence by “curing” any pre-petition arrearages by paying the arrearages over time through a Chapter 13 Plan, and by resuming making regular payments to the mortgage holder. The Chapter 13 filing will also stop any foreclosure action that may have been initiated by the mortgage holder. In a Chapter 7 case, the debtor generally receives a discharge of debts that exist at the time the case is filed. Therefore, if homeowners do not want to keep their primary residence, they can walk away from the mortgages and not be held personally liable on the notes associated with the mortgages in any subsequent foreclosure action. If the homeowners want to keep the primary residence but had judgment or other non-consensual liens which impair their homestead exemption in the property, they can file a motion in the Chapter 7 to avoid those liens.

The Effect of CaulkettPrior to June 1, 2015, at least one circuit court allowed homeowners who were underwater on their mortgages to void a junior mortgage on a primary residence in a Chapter 7 case, relying on 11 U.S.C. Section 506 (a) and (d). See Folendore v. United States Small Business Administration,

862 F.2d 1537 (11th Cir. 1989). The Court noted that section 506 (a) provides that a creditor is secured to the extent of the value of the creditor’s interest in the property, and is unsecured to the extent that the value of creditor’s interest is less than the amount of the allowed claim. Since Section 506(d) provides that to the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void, the Court concluded that since the amount owed on the senior mortgage exceeded the value of the residence, the junior lien holder did not have an allowed “secured claim.”

The homeowner’s ability to void a junior mortgage in a Chapter 7 case was squelched on June 1, 2015, when the U.S. Supreme Court decided the case of Bank of America, N.A. v. Caulkett and Bank of America, N.A. v. Toledo-Cardona, 575 U.S. ___, 2015 WL 2464049, 2015 U.S. Lexis 3579 (Nos. 13-1421 and 14-163, June 1, 2015). In Caulkett, the Court held that a debtor homeowner in a Chapter 7 bankruptcy case could not “strip-off ” or void a junior mortgage on a primary residence under Section 506(d) when the debtor was underwater on his/her mortgage. The Court upheld its prior decision in Dewsnup v. Timm, 502 U.S. 410 (1992), wherein it defined the term “secured claim” in Section 506(d) to mean a claim supported by a security interest

Second Mortgage Lien Stripping in Chapters 7 and 13 after Bank of America, N.A. v. Caulkett

By Karen H. Bradley and Gerald R. Velarde

... many homeowners are unable to sell their homes and are unable

to pay the first mortgage, let alone a second or third mortgage.


in property, and found that a “secured claim” does not depend on whether a lien is partially or wholly underwater. The Court declined to accept the homeowner’s argument that Section 506(d) could be construed as any claim that is backed by collateral with some value.

Although Caulkett makes it clear that a debtor homeowner in a Chapter 7 case cannot avoid a junior mortgage on a primary residence when the debtor is underwater on his/her mortgage, it appears the ability to do so in Chapter 13 remains unaffected. In Caulkett, the Court did not address avoidance of a junior mortgage on a primary residence in a Chapter 13 bankruptcy case under 11 U.S.C. Section 1322(b)(2). Thus, whereas it is clear after Caulkett that a debtor who is underwater on his/her mortgage cannot avoid the junior mortgage based on Section 506(d), the issue remains whether the debtor can avoid the junior mortgage in a Chapter 13 case under Section 1322(b)(2).

Some guidance as to whether, in a Chapter 13 case, a junior mortgage on a primary residence can be avoided under Section 1322(b)(2), may be gleaned from cases decided before Caulkett. In a case decided before Caulkett, the Tenth Circuit considered the issue of whether Section 506(d) allows a Chapter 13 debtor to strip a second mortgage from the homestead when the debtors are underwater on their mortgage. Woolsey v. CitiBank, N.A., 696 F.3d 1266 (10th Cir. 2012). In Woolsey, the debtor homeowner made substantially the same argument as that made by the debtor in Caulkett, i.e. that §506(d) allowed

a strip of a second lien. Although the Tenth Circuit invited debtors to argue the applicability of Section 1322(b)(2) to strip a second lien, the debtors refused to do so. The Tenth Circuit stated that “in deference to their wishes, we opt today against forcing a Section 1322(b)(2) argument onto the unwilling debtors and leave that statute and its meaning for another day when a bankruptcy petitioner actually wants to pursue the question.” Id. at 279.

Although the Tenth Circuit has not specifically ruled on the issue, decisions from various other circuits indicate that debtors in Chapter 13 cases can avoid a junior mortgage on a primary residence when the debtors are underwater on their mortgage, not pursuant to Section 506(d) as vetoed by Caulkett, but under the provision specifically applicable to Chapter 13; namely, 11 U.S.C. Section 1322(b)(2). See Lane v. W. Interstate Bancorp (In re Lane), 280 F.3d 663 (6th Cir. 2002); Zimmer v. PSB Lending Corp. (In re Zimmer), 313 F.3d 1220 (9th Cir. 2002); Pond v. Farm Specialist Realty (In re Pond), 252 F.3d 122 (2d Cir. 2001); McDonald v. Master Financial, Inc. (In re McDonald), 205 F.3d 606 (3rd Cir. 2000); Bartee v. Tara Colony Homeowners Association (In re Bartee), 212 F.3d 277 (5th Cir. 2000); Tanner v. FirstPlus Fin., Inc. (In re Tanner), 217 F.3d 1357 (11th Cir. 2000). Based on dicta in Woolsey and the rulings by other circuits, it is possible that the Tenth Circuit (and ultimately the U.S. Supreme Court) will authorize the use of Section 1322(b)(2) to strip off a junior mortgage on a primary residence when homeowners are underwater on their mortgages.

What the Court in Caulkett makes clear is that a debtor homeowner in a Chapter 7 case can no longer void a wholly unsecured junior mortgage under Section 506(d) of the Bankruptcy Code. Since the Court in Caulkett did not address Section 1322(b)(2), however, junior mortgages can probably still be avoided in Chapter 13, although not under Section 506(d). A homeowner who is seeking advice on dealing with junior mortgages on his/her residence should be made aware that Chapter 7 now offers limited relief, but that Chapter 13 continues to be a viable (albeit expensive, if litigated) option. Homeowners should be advised that they should obtain a market analysis or appraisal of the home, so that a reasonable value can be assigned. Next, homeowners should determine the exact amount owed on the primary mortgage. If the amount owed on the primary mortgage exceeds the value of the residence, homeowners can be advised that a Chapter 13 bankruptcy may allow the homeowner to avoid the junior mortgage, and that a motion to avoid the junior mortgage may be attempted. However, homeowners should also be warned that the holder of the junior mortgage may oppose the avoidance and may obtain a competing appraisal. At trial, the issue will be the value of the residence, which may involve the testimony of (often expensive) valuation experts.

No longer exist the days when homeowners are seeking to tap into financial resources available by means of their mortgages. Rather, today’s practitioners should be armed to with answers to homeowners’ questions as to how to best proceed with a bankruptcy when they have multiple mortgages. Knowing the difference in protections currently provided under Chapter 7 versus Chapter 13 bankruptcy proceedings, following the Court’s decision in Caulkett, is key to best advising one’s potential clients.

Karen H. Bradley is a Managing Partner of Little, Bradley & Nesbitt PA. Her practice is primarily limited to representing lenders in real estate foreclosure, bankruptcy and related actions.

Gerald R. Velarde is a sole practitioner in Albuquerque. His practice mainly involves consumer and small business bankruptcy or workouts. Velarde serves on the Local Rules Amendments and Advisory Committee for the U.S. Bankruptcy Court, District of New Mexico.

... today’s practitioners should be armed to with answers to homeowners’ questions as to how to best proceed with a

bankruptcy when they have multiple mortgages.


On Dec. 29, 2014, the Tenth Circuit issued its opinion in two

consolidated cases, Mallo v. IRS and Martin v. United States, announcing a result which would strike most laypeople as unusual: because the debtors’ income tax returns were not timely filed, they did not constitute tax returns under 11 U.S.C. § 523(a). In re Mallo, 774 F.3d 1313 (10th Cir. 2014). The Tenth Circuit came to this conclusion due to the so-called “hanging paragraph” of section 523, that is, the last unnumbered paragraph of section 523(a), appearing after section 523(a)(19). The hanging paragraph, sometimes referred to as section 523(a)(*), states in part: “For purposes of this subsection, the term ‘return’ means a return that satisfies the requirements of applicable nonbankruptcy law (including applicable filing requirements).” Relying on decisions in the context of habeas petitions, bankruptcy appeals, and a criminal prosecution for willful failure to file corporate tax returns, the Tenth Circuit held that the timeliness of a tax return is a “requirement of applicable nonbankruptcy law” under the hanging paragraph. Id. at 1321.

The Tenth Circuit went on to explain that, as a result, tax debts associated with late returns were not dischargeable under the bankruptcy code by operation of 11 U.S.C. § 523(a)(1)(B)(i), which provides that individual debtors may not discharge debts “for a tax or a customs duty—with respect to which a return, or equivalent report or notice, if required—was not filed or given.” The impact of this holding should not be understated: in the Tenth Circuit, any tax debt for a tax year with a late-filed tax return is nondischargeable, unless the return was filed under a safe harbor provision. The Tenth Circuit’s conclusion was based on the Fifth Circuit’s similar holding in In re McCoy where the Fifth Circuit held that “[u]nless it is filed under a ‘safe harbor’ provision similar to [26 U.S.C.] § 6020(a), a state income tax return that is filed late under the applicable nonbankruptcy state law is not

a ‘return’ for bankruptcy dischargeability purposes under § 523(a).” In re Mallo, 774 F.3d 1313, 1321-22 (10th Cir. 2014); In re McCoy, 666 F.3d 924 (5th Cir. 2012).

What is interesting in Mallo is that, not only did the Mallo taxpayers not want McCoy to be adopted, but “[t]he United States agree[d] that the interpretation in McCoy should not be followed or applied, and specifically indicate[d] that it ‘does not advocate adoption of McCoy as it leads to harsh results that would penalize taxpayers who file even a day late and without requiring government intervention to assess the tax.’” In re Mallo, 498 B.R. 268, 277 (D. Colo. 2013) aff ’d 774 F.3d 1313 (10th Cir. 2014). In the underlying case, the District of Colorado declined to adopt McCoy, and instead held that the timeliness of a tax return was relevant to whether the taxpayers made “an honest

and reasonable attempt to comply with tax law” under the Beard test. Id. at 281. The Beard test is a four part test assessing, “whether the filings: ‘1) purported to be returns; 2) were executed under penalty of perjury; 3) contained sufficient data to allow computation of tax; and 4) represented an honest and reasonable attempt to satisfy the requirements of the tax law.’” Id. at 272 (quoting Wogoman v. IRS (In re Wogoman), 475 B.R. 239 (10th Cir. BAP 2012). See also Beard v. C.I.R., 793 F.2d 139 (6th Cir. 1986). The District of Colorado found that because there was no “claim of circumstances beyond a taxpayer’s control that prevented him or her from filing a timely return,” the taxpayer’s return did not qualify as a tax return for dischargeability purposes. However, on appeal, the Tenth Circuit overruled the District of Colorado and adopted the McCoy rule.

The McCoy rule provides that an untimely tax return is not a “return.” This appears to be contradicted by the language of section 523(a)(1)(B)(ii), which refers to tax debts “with respect to which a return, or equivalent report or notice was filed or

In re Mallo: Dischargeability of Late-Filed TaxesBy Daniel A. White

... in the Tenth Circuit, any tax debt for a tax year with a late-filed tax return is nondischargeable ...


given after the date on which such report or such return, report or notice was last due, under applicable law or under any extension.” Under the McCoy rule, there can be no such thing, except for returns prepared by the taxing authority and signed by the taxpayer under 26 U.S.C. § 6020(a), or similar state or local law, because in any other instance, a return that is not timely filed is not a ‘return’ at all. However, this contradicts the plain language of section 523(a)(1)(B)(ii), which contemplates late-filed tax returns in broader circumstances than returns prepared by the taxing authority and signed by the taxpayer under 26 U.S.C. § 6020(a), or similar state or local law.

In Mallo, the taxpayers argued that the McCoy rule renders section 523(a)(1)(B)(ii) meaningless because section 523(a)(1)(B)(ii) renders debts for taxes with respect to which the debtor filed a late-filed tax return nondischargeable “after two years before the date of the filing of the petition.” In re Mallo, 774 F.3d 1313, 1323 (10th Cir. 2014). If all late-filed tax returns are nondischargeable under section 523(a)(1)(B)(i), then this section is surplusage. The Tenth Circuit considered this argument but rejected it. The Tenth Circuit explained that returns filed late under section 523(a)(1)(B)(ii) but not the hanging paragraph would include returns

prepared by the IRS under 26 U.S.C. § 6020(b). These returns are prepared and signed by the IRS, and specifically excluded from the hanging paragraph’s definition of a return which “satisfies the requirements of applicable nonbankruptcy law”. Id. at 1323-1325.

The end result of the Tenth Circuit’s adoption of the McCoy rule is that taxpayers who do not file a return and then have their returns prepared for them under 26 U.S.C. § 6020(a) by the IRS may potentially be eligible to receive a discharge of the debt in bankruptcy, while a taxpayer who filed a tax return a day late would not receive the same treatment. This creates an incentive for taxpayers contemplating bankruptcy who have not filed tax returns for certain years to petition the IRS for returns prepared under 26 U.S.C. § 6020(a), rather than simply filing their own returns. However, the IRS currently does not have sufficient resources with which to prepare returns under 26 U.S.C. § 6020(a).

The IRS’s official position has been that the key point is whether the taxpayer filed a return before or after the tax was assessed, because in the IRS’s view, it is the assessment of the tax that creates a debt. In re Wogoman, 475 B.R. 239, 250-251 (BAP 10th Cir. 2012). This view predates the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, and has not been widely accepted. See, e.g., Id. (citing Savage v. IRS (In re Savage), 218 B.R. 126 (10th Cir. BAP 1998)); In re Briggs, 511 B.R. 707, 712 (Bankr. N.D. Ga. 2014). However, certain courts have been receptive to this line of reasoning, including the First Circuit’s Bankruptcy Appellate Panel and the Bankruptcy Court for the Central District of California. Those courts adopted the IRS’s position in recent cases, and held that taxes for which the taxpayer filed a late return prior to

assessment could be discharged under section 523(a)(1)(B). In re Gonzales, 506 B.R. 317, 326-328 (1st Cir. BAP 2014); In re Pitts, 497 B.R. 73 (Bankr. C.D. Cal. 2013).

In conclusion, whether a “late-filed tax return” can even exist outside of the narrow confines of 26 U.S.C. § 6020(a) or similar state or local law, and the precise rules regarding dischargeability of tax debt for which a return was filed late, are presently the subject of a nascent disagreement among courts nationwide. This disagreement shows signs of becoming a circuit split, and presents a potential pitfall for debtors’ counsel.

Daniel White is a bankruptcy attorney with Askew & Mazel LLC in Albuquerque. He is newsletter editor of the American Bankruptcy Institute’s young and new members committee and on the Board of Directors of the State Bar of New Mexico Bankruptcy Law Section.

This disagreement shows signs of becoming a circuit split, and presents a potential pitfall for debtors’ counsel.

Articles printed in this publication are solely the opinion of the authors. Publication of any article in the New Mexico Lawyer is not deemed to be an endorsement by the State Bar of New Mexico or the Board of Bar Commissioners of the views expressed therein. The New Mexico Lawyer’s purpose is to provide an educational resource for all members of the State Bar on matters related to the justice system, the regulation of the legal profession and the improvement of the quality of legal services.


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

Effective October 28, 2015

Pending Proposed Rule Changes Open for Comment:

Comment DeadlineRule 5 401. [Bail] Pretrial release. 11/12/15Rule 5 408. Pretrial release by designee. 11/12/15Rule 6 408. Pretrial release by designee. 11/12/15Rule 7 408. Pretrial release by designee. 11/12/15Rule 8 408. Pretrial release by designee. 11/12/15Form 9 302A. Order for release on recognizance by designee. 11/12/15

Recently Approved Rule Changes Since Release of 2015 NMRA:

For 2014 year-end rule amendments that became effective Decem-ber 31, 2014, and which now appear in the 2015 NMRA, please see the November 5, 2014, issue of the Bar Bulletin or visit the New Mexico Compilation Commission’s website at http://www.nmcompcomm.us/nmrules/NMRuleSets.aspx.

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Uniform Jury Instructions-Criminal

14 602 Withdrawn 04/03/1514 603 Withdrawn 04/03/1514 604 Withdrawn 04/03/1514 605 Withdrawn 04/03/1514 610 Withdrawn 04/03/1514 611 Chart 04/03/1514 612 Child abuse not resulting in death or great

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act; child under 12; essential elements 04/03/1514 625 Jury procedure for various degrees of

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

From the New Mexico Supreme Court and Court of Appeals

Certiorari Denied, June 11, 2015, No. 35,283


Opinion Number: 2015-NMCA-077

STATE OF NEW MEXICO,Plaintiff-Appellee,

v.MATTHEW SANCHEZ,Defendant-Appellant

Docket No. 32,664 (filed April 13, 2015)

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTYSTEPHEN D. PFEFFER, District Judge

HECTOR H. BALDERASAttorney GeneralPAULA E. GANZ

Assistant Attorney GeneralSanta Fe, New Mexico

for Appellee

JORGE A. ALVARADOChief Public Defender

WILL O’CONNELLAssistant Appellate Defender

Santa Fe, New Mexicofor Appellant

Opinion

J. Miles Hanisee, Judge{1} Convicted of murder in the second degree and third-degree tampering with evidence, Defendant Matthew Sanchez asserts three points of appeal: (1) the district court committed reversible error by allowing the State to question a wit-ness regarding a prior act of Defendant that led to an unrelated assault charge, (2) insufficient evidence existed to sup-port his conviction for tampering with evidence, and (3) the district court’s entry of conviction for third-degree tampering with evidence constituted fundamental error. We determine that Defendant’s own areas of trial inquiry permitted the State, as allowed and limited by the district court, to inquire regarding the witness’s aware-ness of the prior act. We also hold that Defendant’s conviction for third-degree tampering with evidence was supported by sufficient trial evidence and was properly adjudicated. Accordingly, we affirm.BACKGROUND{2} On September 10, 2011, Defendant fatally stabbed his friend Tupac Amaru Leyba (Victim) in the chest and later threw the weapon from his car window as he de-parted the scene of the stabbing. The knife was never recovered. At trial, Defendant

testified and admitted that he stabbed Victim and lied to the police when inter-viewed following the fatal event. However, he maintained that he acted exclusively in self-defense.{3} During cross-examination of a State’s witness (Witness), defense counsel asked if Witness remembered stating at a pre-liminary examination that Defendant “was a very nice guy, that he’s very quiet and that he never really talked, that he was just a nice guy.” When Witness indicated that she did recall making that statement, defense counsel went on to inquire of Witness whether Victim had enemies, what if any alcohol or other mood-altering substances had been consumed that night, and whether Victim habitually carried a weapon. After this exchange, the State notified the court that it intended to of-fer rebuttal evidence regarding Witness’s opinion of Defendant’s demeanor and character. Despite the State’s warning, de-fense counsel further questioned Witness if she had ever seen Defendant “become aggressive in any way toward [Victim.]” Witness stated that she had not.{4} Following this testimony, the State sought to rebut what it perceived to be the presentation of character evidence by Defendant. It argued that by eliciting opinion testimony from Witness regarding her impressions of Defendant’s peaceable

demeanor, defense counsel had opened the door to inquiry concerning three separate incidents that bore the potential capacity to change Witness’s positive opinion of Defendant. The events consisted of Defen-dant: (1) discharging a gun over the heads of his family members, (2) threatening to kill a man over a debt, and (3) ramming a law enforcement vehicle and fleeing from police. Defense counsel objected, arguing that his queries had not opened the door to the State’s desired topics of rebuttal and that admission of such prior act evidence would unfairly prejudice Defendant.{5} After pointing out that it was defense counsel’s questioning that elicited the per-tinent character trait of Defendant being a “calm and very nice guy” and recognizing the State’s opportunity to “present evidence of something other than that[,]” the dis-trict court conducted an inquiry designed to determine whether the specific events of which the State proposed to question Wit-ness were properly admissible. Although it initially ruled that admitting questions regarding the three prior incidents would cause undue delay and confusion of is-sues for the jury, after conducting its own research, the district court determined that Rule 11-404(A) NMRA, governing the admissibility of character evidence offered by a defendant and rebutted by the State, controlled the inquiry. Pursu-ant to the rule, the court permitted the State to question Witness regarding her awareness of one prior event in order to rebut the character trait placed at issue by Defendant.{6} Although the court found each of the State’s three desired topics of rebut-tal inquiry to be supported by good faith, it nonetheless disallowed inquiry regarding the second and third events on the basis that both had been initially charged but were later dismissed by the State. Noting that Defendant was then separately indicted for the crime of ag-gravated assault with a deadly weapon, the district court announced its intention to allow the State to question Witness regarding any awareness she possessed of Defendant having discharged a firearm over the heads of his family members. It further ruled that upon any such inquiry, Defendant would be entitled to a limiting instruction regarding the jury’s use of that evidence. The parties submitted proposed versions of the question to be asked of Witness regarding the shooting incident,

http://www.nmcompcomm.us/


http://www.nmcompcomm.us/Advance Opinionsand based again on its research the court chose to allow a “modified . . . proposal of the State[.]” The question presented to Witness, in relevant part, was as follows: “Were you aware that . . . Defendant had been accused of aggravated assault with a deadly weapon for going to the prop-erty of an individual not associated with this case and shooting a gun five to six times?” When Witness declared herself to be unaware of the incident, the State asked: “If you were aware of that . . ., would your opinion have changed?” Witness responded affirmatively.{7} Immediately thereafter, the district court verbally provided the jury with a previously agreed to limiting instruction, stating that it had “allowed questions by the prosecution to test the opinion previ-ously expressed by this witness to the effect that . . . Defendant . . . is a calm and very nice person” and that the questions asked were “not in and of themselves evidence that the matters which form the basis of the questions did, in fact, occur and [the jury] must not consider these questions for any purpose other than the right of the prosecution to test an opinion of a witness as to an asserted characteristic of . . . De-fendant.” The instruction was repeated and twice reiterated by the court prior to closing arguments and included within the printed instructions given to the jury prior to deliberation. The jury convicted Defendant of third-degree tampering with evidence and second-degree murder, and Defendant appeals.A. The District Court Properly

Admitted Rebuttal Character Evidence

{8} Defendant contends that the district court committed reversible error in al-lowing the State “to ask a question which recited unproven facts of an unrelated aggravated assault case against [Defen-dant].” Defendant specifically argues that the State’s “naked assertion” of the occur-rence of a separate shooting incident was highly prejudicial. He additionally appears to challenge allowance of the question on grounds that it violated the general prohi-bition on prior acts evidence.{9} Rule 11-404(A) governs both the allowance and limitation of character evidence. See id. It states that “[e]vidence of a person’s character or character trait is not admissible to prove that on a par-ticular occasion the person acted in ac-cordance with the character or trait.” Rule 11-404(A)(1). However, an exception to this prohibition exists in criminal cases,

permitting “a defendant to “offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it[.]” Rule 11-404(A)(2)(a). Moreover, “[o]n cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.” Rule 11-405(A) NMRA. We review the admission of evidence during trial for an abuse of discretion and will not disturb a district court’s ruling “absent a clear abuse of that discretion.” State v. Stanley, 2001-NMSC-037, ¶ 5, 131 N.M. 368, 37 P.3d 85.{10} We first emphasize that Defendant fails to provide any analysis or discussion of Rule 11-404, or Rule 11-405, whatso-ever in his briefing. Moreover, Defendant does not appear to challenge whether his questioning of Witness during cross-examination was directed toward the establishment of his peaceable nature. Instead, Defendant relies exclusively on a single case, State v. Christopher, 1980-NMSC-085, 94 N.M. 648, 615 P.2d 263, in which our Supreme Court considered the propriety of the state’s cross-examination of character witnesses regarding their knowledge of the defendant’s criminal convictions twenty-three years earlier, as well as a separate and more recent allega-tion of spousal assault. Id. ¶ 2.{11} First addressing the prior convic-tions, our Supreme Court adopted the reasoning of Michelson v. United States, 335 U.S. 469 (1948) (upholding cross-examination inquiry of character witnesses regarding awareness of the defendant’s prior conviction and the defendant’s sepa-rate prior arrest), and determined that the district court erred in allowing testimony regarding the prior convictions because: (1) the district court failed to conduct an inquiry into whether the past events had occurred; (2) “none of the witnesses had known the [defendant] for more than six years”; (3) the district court did not pro-vide the jury with a limiting instruction; (4) “the defendant offered no evidence of specific prior acts”[;] and (5) defense counsel objected to the state’s inquiry. Christopher, 1980-NMSC-085, ¶ 16-17. Separately, the Court considered the pro-priety of the state’s inquiry into the alleged spousal assault and once more determined that the district court erred, in part, be-cause the abuse claim was supported by nothing more than the wife’s allegation; further, the district court neglected to separately assess the veracity of the state’s desired questions. Id. ¶¶ 21-23. Again,

the Court emphasized the district court’s failure to instruct the jury as to the limited purpose of the state’s questioning. Id. ¶ 25.{12} Defendant applies the Michelson factors, adopted in Christopher, and asks us to reverse on these grounds. However, Christopher and its analysis of the Michel-son factors are distinguishable. First, we note that in spite of Defendant’s reliance on the Michelson factors, our Supreme Court adopted that reasoning specifically with regard to the prior convictions at issue in Christopher. 1980-NMSC-085, ¶ 11. Here, whether or not Defendant had prior convictions was not at issue, nor was the admissibility of any such evidence. Furthermore, unlike the circumstances surrounding the alleged spousal assault in Christopher, the district court here care-fully assessed the veracity of the events upon which the State sought to question Witness and ultimately found only the shooting incident, for which Defendant’s indictment by a grand jury was then pend-ing, to be an appropriate avenue of rebut-tive inquiry. In so ruling, the district court rejected two of the prior acts that the State maintained to be appropriate instances to rebut the implication of peaceableness provided to the jury during Witness’s cross-examination by Defendant. Thus, the district court only allowed that which fit within the plain language of the rule and bore independent indicia of reliability pur-suant to the independent charging process. Most critically, the court was repetitiously diligent in ensuring that the jury was aware of the limited purpose of the State’s questioning. Not only did it provide an immediate verbal limiting instruction fol-lowing Witness’s responsive testimony, but it again verbally admonished the jury as to its limited ability to consider the testimony twice before closing arguments and again within the jury instruction packet. For these reasons, we conclude that Christo-pher, and its application of the Michelson factors, is distinguishable.{13} Apart from Christopher, we reiterate that while Rule 11-404(A) prohibits the ad-mission of evidence of a person’s character trait “to prove that on a particular occasion the person acted in accordance with the character or trait[,]” it does allow a de-fendant to offer evidence of his or her own pertinent trait. Rule 11-404(A)(1), (A)(2)(a). Defendant, through his questioning of Witness, elicited evidence of his nice, quiet, and non-aggressive nature, going so far as to refresh Witness’s recollection of her own prior testimony. Under Rule 11-



http://www.nmcompcomm.us/Advance Opinions404(A)(2)(a), such evidence is subject to rebuttal by the State. See State v. Martinez, 2008-NMSC-060, ¶ 24, 145 N.M. 220, 195 P.3d 1232 (stating that when a defendant offers evidence of his or her own good character, the defendant opens the door to the state’s ability to question witnesses about “their awareness of information inconsistent with good character”). And while evidence of a person’s character or character trait is typically only permitted to be proven by reputation or opinion testimony, pursuant to Rule 11-405(A) “specific instances of the person’s conduct” are permitted on cross-examination of a character witness. Evidence allowed by both rules was precisely the nature of that which was made available to the jury dur-ing Defendant’s trial.{14} Although we recognize that Wit-ness was the State’s witness, and the State was not cross-examining Witness, but redirecting, Defendant has not asserted the inapplicability of Rule 11-404(A) or Rule 11-405 on appeal, and like the dis-trict court before us, we note that this is a “parallel” situation where the State was essentially “cross-examining [Witness] on redirect and [seeking] to bring up” matters already raised by Defendant. As Defendant has cited no authority on this factual nu-ance, we may assume none exists. State v. Godoy, 2012-NMCA-084, ¶ 5, 284 P.3d 410 (“Where a party cites no authority to support an argument, we may assume no such authority exists.”). Thus, based on the distinguishable characteristics of Christo-pher and our interpretation of the directly applicable provisions of Rule 11-404(A)(2)(a) and Rule 11-405(A), we conclude that the limited inquiry allowed by the district court coupled with its repeated cautionary instructions did not amount to an abuse of discretion, and we affirm Defendant’s conviction for second-degree murder.B. The Evidence was Sufficient to

Support Defendant’s Conviction for Tampering with Evidence

{15} Defendant challenges the sufficiency of the evidence against him for tamper-ing with evidence pursuant to State v. Franklin, 1967-NMSC-151, 78 N.M. 127, 428 P.2d 982, and State v. Boyer, 1985-NMCA-029, 103 N.M. 655, 712 P.2d 1. Defendant argues that “a reasonable jury should have found him not guilty” due to the conflicting evidence presented at trial. Defendant maintains that “the clear weight of the evidence[] shows that he did not intend to mislead investigators when he disposed of the knife.” The State responds

that the evidence is for the jury to weigh, and the “jury may draw its own conclu-sions about Defendant’s intent based upon [the] overt action of throwing the knife out the [car] window as he drove away” from the crime scene. We conclude that there was sufficient evidence presented to the jury to support Defendant’s conviction for tampering with evidence.{16} “The test for sufficiency of the evi-dence is whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction.” State v. Duran, 2006-NMSC-035, ¶ 5, 140 N.M. 94, 140 P.3d 515 (internal quotation marks and citation omitted). We review the evidence in the “light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict.” State v. Garcia, 2011-NMSC-003, ¶ 5, 149 N.M. 185, 246 P.3d 1057 (internal quotation marks and citation omitted). In our capacity as a re-viewing court, we do not share the original ability of the jury to view the evidence and witnesses firsthand; therefore, we defer to the jury’s findings. Id. We will not “reweigh the evidence or attempt to draw alterna-tive inferences from the evidence.” State v. Estrada, 2001-NMCA-034, ¶ 41, 130 N.M. 358, 24 P.3d 793.{17} Our Legislature has defined the ele-ments of tampering with evidence to be: (1) “destroying, changing, hiding, placing or fabricating any physical evidence[,]” (2) “with intent to prevent the apprehension, prosecution or conviction of any person[,] or to throw suspicion of the commission of a crime upon another.” NMSA 1978, § 30-22-5(A) (2003). Because tampering with evidence is a specific intent crime, conviction requires that the State present sufficient evidence to allow a jury to infer both an overt act and the defendant’s subjective, specific intent. State v. Jackson, 2010-NMSC-032, ¶ 11, 148 N.M. 452, 237 P.3d 754. However, “[w]hen there is no other evidence of the specific intent of the defendant to disrupt the police investiga-tion, intent is often inferred from an overt act of the defendant.” Duran, 2006-NMSC-035, ¶ 14.{18} In this case, Defendant testified that after he stabbed Victim with a knife, he “jumped . . . in the car and . . . took off real fast” because he was scared and “just freaked out.” He stated that he then “threw the knife out and . . . noticed [his phone] charger was hanging out.” At this

point, Defendant realized he had dropped his phone, further deduced its possible presence at the scene of the stabbing, and reversed direction to retrieve it. Upon arriving and observing that Victim remained where he had been stabbed, Defendant left. He explained to the jury that he did not want Victim to “start another conflict.” When asked why he discarded the knife, Defendant stated that it “was [his] first reaction. [He] wanted to get it away” as he “just freaked out.” He contended that his purpose in discarding the knife was not to avoid being implicated in the crime.{19} Defendant’s testimony describ-ing having thrown the knife from his vehicle satisfies the first element of tam-pering insofar as his act removed or concealed an item of evidence. See § 30-22-5(A). Although Defendant contends that “the evidence suggests [] a reasonable doubt . . . that [he] was guilty of tampering with evidence and that a reasonable jury should have found him not guilty,” it is the role of the jury to weigh the credibility of a witness. State v. Santillanes, 1974-NMCA-092, ¶ 2, 86 N.M. 627, 526 P.2d 424. “The fact finder can choose to believe the [s]tate’s testimony and disbelieve [the d]efendant’s version of events.” State v. Fierro, 2014-NMCA-004, ¶ 40, 315 P.3d 319, cert. denied, 2013-NMCERT-012, 321 P.3d 127. There is sufficient evidence in the record to support Defendant’s conviction for tampering with evidence; therefore we affirm the conviction. State v. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314 (“Where . . . a jury verdict in a criminal case is supported by substantial evidence, the verdict will not be disturbed on appeal.”).C. Entry of Conviction for Third-

Degree Tampering Did Not Constitute Fundamental Error

{20} Based on Defendant’s act discard-ing the knife used to kill Victim, he was charged with third-degree tampering with evidence, which forbids tampering with evidence relating to a capital crime or of a first-or second-degree felony. Section 30-22-5(A), (B)(1). At trial, the jury was instructed that in order to find Defendant guilty of tampering with evidence, Defen-dant must have “hid or placed the knife” used to stab Victim in order to prevent his apprehension or prosecution. The jury was not, however, instructed that the evidence must have related to a second-degree felony. Therefore, Defendant argues that he was improperly convicted of third-degree



http://www.nmcompcomm.us/Advance Opinionstampering because the State’s tampering instruction failed to ensure the jury’s determination that Defendant intended to prevent his conviction related to a particular crime. Absent such a finding, Defendant argues that his sentence for third-degree tampering with evidence vio-lated his Sixth Amendment constitutional rights.{21} We typically review this constitu-tional issue de novo. State v. Alvarado, 2012-NMCA-089, ¶ 5, ___ P.3d ___. However, as Defendant concedes that this issue was not properly preserved, we review solely for fundamental error. State v. Herrera, 2014-NMCA-007, ¶ 4, 315 P.3d 343. “The rule of fundamental error applies only if there has been a miscarriage of justice, if the question of guilt is so doubt-ful that it would shock the conscience to permit the conviction to stand, or if sub-stantial justice has not been done.” State v. Orosco, 1992-NMSC-006, ¶ 12, 113 N.M. 780, 833 P.2d 1146.{22} As we have stated, tampering with evidence is, in relevant part, “destroying, changing, hiding, placing or fabricat-ing any physical evidence with intent to prevent the apprehension, prosecution or conviction of any person[.]” Section 30-22-5(A). “Section (B) [of the statute] establishes levels of punishment depend-ing on the degree of crime for which tampering with evidence is committed.” Jackson, 2010-NMSC-032, ¶ 20 (internal quotation marks omitted). A person is guilty of third-degree tampering “if the highest crime for which tampering with evidence is committed is a capital or first[-]degree felony or a second[-]degree felony[.]” Section 30-22-5(B)(1). “[I]f the highest crime for which tampering with evidence is committed is indeterminate,” such that no crime underlying the tamper-ing could be identified, a person is guilty of a fourth-degree felony. Section 30-22-5(B)(4); Jackson, 2010-NMSC-032, ¶ 21.{23} Defendant was charged with tam-pering with evidence of a second-degree felony as prohibited by Section 30-22-5(B)(1). At trial, the district court generally

instructed the jury on tampering with evidence; the instruction did not require the jury to find that Defendant’s act of tampering related specifically to a second-degree felony. It merely stated that in order to find Defendant guilty of tampering with evidence, the State must prove beyond a reasonable doubt that Defendant “hid or placed the knife used to stab [Victim]” and by doing so, “[D]efendant intended to prevent his apprehension, prosecution, or conviction.{24} Defendant relies upon Alvarado, where we held that “when a defendant is charged with third[-]degree tampering with evidence of a capital, first, or sec-ond[-]degree felony,” the State must prove, beyond a reasonable doubt, that the evi-dence with which the defendant tampered related to the underlying felony. 2012-NMCA-089, ¶ 16. Because the State did not provide such proof, we determined that the proper resolution was for the defendant to be sentenced under the indeterminate crime provision of the statute. Id. While we acknowledge the analogous nature of Alvarado and the case before us, we view Defendant’s case to be more appropriately on point with Herrera, 2014-NMCA-007, where, in an identical fundamental error analysis, this Court considered the issue of whether, in the case of a conviction and sentence for third-degree tampering with evidence, the omission of a finding that the weapon was evidence of a second-degree felony violated a defendant’s right to have a jury find all elements of the offense beyond a reasonable doubt. Herrera, 2014-NMCA-007, ¶¶ 4, 7. We determined that for the purpose of a Sixth Amendment challenge that argues for entitlement to a jury de-termination of guilt beyond a reasonable doubt as to every element of the charged crime, the factors contained within Sub-section (B) of the tampering statute were such that they “must be interpreted as elements of the offence, rather than mere sentencing factors.” Herrera, 2014-NMCA-007, ¶¶ 8, 13. Although we recognized that “the failure to instruct the jury on one of the elements of the offense of third-degree

tampering with evidence was error[,]” offending the defendant’s rights under the Sixth Amendment, the error did not amount to fundamental error as it was clear that on review of the entire record, the evidence presented at trial established the missing element. Id. ¶ 17.{25} Here, Defendant testified at trial that he stabbed Victim and “threw the knife out” of the window of his moving vehicle. In finding Defendant guilty of tampering with evidence, the jury determined that Defendant “tossed the knife” with the in-tent to prevent his apprehension, prosecu-tion, or conviction. Additionally, the jury found that the act of stabbing Victim with a knife was second-degree murder. Our review of the record herein reveals that the only evidence presented at trial that related to Defendant’s discard of the knife was the act of stabbing Victim. Because the jury concluded that the stabbing constituted a second-degree felony, “the facts at trial established that the tampering related to a second-degree felony.” Id. ¶ 18. While the factors contained in Subsection (B) of Section 30-22-5 are essential elements of the crime of tampering with evidence, and “the omission of an essential element of an offense will often be found to be fundamental error,” the evidence at trial clearly established the missing element, and therefore, we hold that the district court did not fundamentally err. Herrera, 2014-NMCA-007, ¶ 17 (“If it is clear that the missing element was established by the evidence at trial, the fact that the jury was not instructed on the element is not considered fundamental error.”).CONCLUSION{26} For the forgoing reasons, we affirm Defendant’s convictions for second-degree murder and third-degree tampering with evidence.{27} IT IS SO ORDERED.

J. MILES HANISEE, Judge

WE CONCUR:MICHAEL E. VIGIL, Chief JudgeM. MONICA ZAMORA, Judge



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

Certiorari Granted, July 17, 2015, No. 35,302


Opinion Number: 2015-NMCA-078

SARA CAHN,Plaintiff-Appellee,

v.JOHN D. BERRYMAN, M.D.,

Defendant-AppellantDocket No. 33,087 (filed April 30, 2015)

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTYNAN G. NASH, District Judge

FELICIA C. WEINGARTNERLAW OFFICES OF

FELICIA C. WEINGARTNER, P.C.Albuquerque, New Meixco

TERRY M. WORDTERRY M. WORD, P.C.

Albuquerque, New Mexico

CID D. LOPEZLAW OFFICE OF CID D. LOPEZ LLC

Albuquerque, New Mexico

CARMELA D. STARACEAlbuquerque, New Mexico

for Appellee

WILLIAM P. SLATTERYDANA S. HARDY

HINKLE, HENSLEY, SHANOR & MARTIN, LLP

Santa Fe, New Mexico

EMILY A. FRANKEBUTT THORNTON & BAEHR PC

Albuquerque, New Mexicofor Appellant

Opinion

Michael E. Vigil, Chief Judge{1} This is a medical malpractice action against a qualified healthcare provider under the Medical Malpractice Act, NMSA 1978, §§ 41-5-1 to -29 (1976, as amended through 2008). When Plaintiff learned she had a malpractice claim against Defendant, ten and one-half months remained under the Act’s three-year statute of repose to sue Defendant. Section 41-5-13. The question posed is whether this was a constitutional-ly reasonable period of time for Plaintiff to file her lawsuit against Defendant. Because we conclude that, consistent with due process, Plaintiff had a reasonable period of time to sue Defendant, and Defendant was not named until eleven months after the statute of repose expired, Plaintiff ’s suit against Defendant is barred. The district court having ruled otherwise, we reverse.BACKGROUND{2} On May 17, 2006, Plaintiff, Sara Cahn, went to the emergency room of Lovelace

Women’s Hospital complaining of ab-dominal and pelvic pain. Plaintiff received a pelvic ultrasound on May 19, 2006, at Lovelace West Mesa Medical Center, and the ultrasound report stated that there was a complex mass on Plaintiff ’s left ovary and noted that “[a] malignancy need[ed] to be excluded.” Plaintiff was twenty-seven years old.{3} The one and only time Plaintiff was seen by Defendant, Dr. Berryman, was on August 8, 2006, to review the ultrasound report that Plaintiff hand carried to the appointment and gave to Defendant. Defendant did not disclose to Plaintiff the findings contained in the ultrasound report. Instead, Defendant examined Plaintiff and diagnosed her with endome-triosis and prescribed approximately three months of suppressive therapy (contracep-tive patches) to treat her symptoms.{4} Plaintiff used her debit card to pay the $30 co-payment to Sandia OB/GYN, Defendant’s employer, and Plaintiff ’s in-surer, Lovelace Health Plan, mailed her an Explanation of Benefits (EOB) form

dated August 23, 2006, which identified Defendant as the doctor Plaintiff saw on August 8, 2006. The EOB form was mailed to an address where Plaintiff no longer lived, but her mail was being forwarded to where she was living.{5} Plaintiff moved to Wyoming and saw Dr. Mary Girling on September 22, 2008, for continuing abdominal pain. Dr. Girling reviewed the May 19, 2006, ultrasound report, and told Plaintiff of the ultrasound findings. Plaintiff now knew she had a medical malpractice claim against Defen-dant. Further tests confirmed Plaintiff had ovarian cancer, and over the next three and one-half months, Plaintiff underwent surgery and treatment in New York and Boston, which included a total hysterec-tomy to remove her uterus and ovaries. Plaintiff hired counsel in December 2008 to pursue her malpractice claim against Defendant.{6} Plaintiff did not know Defendant’s name. Despite Plaintiff ’s efforts and those of her attorneys, which we describe in more detail below, Plaintiff first learned of his name after requesting complete copies of her insurer’s EOB forms after the statute of repose expired in June or July 2010. In response to the request, an EOB form was produced on July 1, 2010, showing that Defendant, as an employee of Sandia OB/GYN, saw Plaintiff on August 8, 2006. Plaintiff ’s bank statements, which Plaintiff had not reviewed until the EOB form was produced, revealed the $30 transaction payable to Defendant’s employer, Sandia OB/GYN, in August 2006. At all times, Plaintiff had used the checking account and had access to her online bank state-ments. Plaintiff also gave a deposition on June 3, 2010, after the statute of repose expired, describing where Defendant’s of-fice was located, but Plaintiff never went to that location to ascertain Defendant’s name. Thus, Plaintiff had ten and one-half months from the date that she discovered she had a malpractice claim against Defen-dant to learn of his name. However, it was not until eleven months after the three-year statute of repose expired that Plaintiff discovered Defendant’s identity. And she discovered it using information which was available to Plaintiff from the time Plaintiff first learned she had a malpractice claim against Defendant.{7} These facts notwithstanding, Plaintiff asserts that her diligence in attempting to learn of Defendant’s name “was thwarted by a confusing medical record system that prevented her from identifying a doctor



http://www.nmcompcomm.us/Advance Opinionsthat for all practical purposes appeared to be a Lovelace provider[,]” and Plain-tiff admits that “her inadvertent mistake was assuming that she was looking for a Lovelace doctor.” Plaintiff ’s confusion was understandable.{8} At the pertinent time, Lovelace Health System, Inc. (Lovelace), which was previously called Lovelace Sandia Health System, was a licensed healthcare provider composed of several hospitals and medical centers, and Plaintiff was insured by Lovelace Health Plan. Plaintiff originally went to the emergency room at Lovelace Women’s Hospital, which was part of Lovelace, and the pelvic ultrasound was performed at Lovelace West Mesa Medical Center, which was also part of Lovelace. Plaintiff ’s original appointment to discuss the ultrasound report was with a doctor at Lovelace Women’s Hospital, but it was cancelled, and when Plaintiff called Lovelace Women’s Hospital to resched-ule the appointment, Lovelace Women’s Hospital provided her with Defendant’s name. Defendant saw Plaintiff in an office located in the Lovelace Women’s Hospital Building. Defendant, however, was not a Lovelace doctor. He was employed by Sandia OB/GYN, a separate entity owned and operated by Dr. Carl Conners, in the Lovelace Women’s Hospital building.{9} Plaintiff attempted to collect her med-ical records from Lovelace to identify the doctors that treated her. She undertook these efforts from September through November 2008, while undergoing treatment and recovery from the cancer. Plaintiff sent eight letters requesting her records from Lovelace Women’s Health, Lovelace Westside Hospital, and Lovelace Women’s Health/ABQ Health Partners. Believing she visited the doctor only one or two months after the ultrasound, Plaintiff requested Lovelace Health Plan EOB records for May, June, and July 2006, but not August 2006. None of the records reflected Plaintiff ’s August 8, 2006, visit or the name of the doctor that examined her.{10} Plaintiff also called Lovelace Wom-en’s Hospital and talked to an employee about the missing record. The Lovelace employee reviewed Plaintiff ’s records and confirmed there was no record of the August 8, 2006, visit. Plaintiff also de-scribed Dr. Berryman, and the employee volunteered that it might be another doc-tor. The Lovelace employee checked that doctor’s records, but there was no record of Plaintiff ’s visit.

{11} Plaintiff ’s counsel, retained in De-cember 2008, also proceeded to collect Plaintiff ’s medical records from Lovelace entities. Plaintiff ’s counsel sent requests to Lovelace Westside OB/GYN, Lovelace Women’s Hospital, Lovelace Westside Hospital, and Lovelace Sandia Health System physician billing and business office in December 2008 and January 2009. Plaintiff ’s counsel also contacted contractors that have records and billing information directly related to Lovelace. Plaintiff ’s counsel requested medical charts and itemized billings from May 17, 2006, until February 4, 2011. None of the documents received included Plaintiff ’s August 8, 2006, visit with Dr. Berryman.{12} Plaintiff filed her complaint on April 10, 2009, naming Lovelace, five doctors employed by Lovelace, and “John Doe” as defendants. “John Doe” was identified as “a physician who [may have] provided care to [Plaintiff] whose identity cannot be as-certained at this time[.]” Fourteen months later in June 2010, Plaintiff subsequently filed a discovery request for all her EOB records from Lovelace Health Plan. Those records, which Plaintiff received on July 1, 2010, disclosed Defendant’s name, and Plaintiff filed an amended complaint on July 9, 2010, naming Defendant and Sandia OB/GYN as Defendants. Defendant did not know of the litigation until July 16, 2010, when he was served.{13} Defendant moved for summary judgment, arguing that the three-year statute of repose expired on August 8, 2009, barring Plaintiff ’s claim. The district court denied the motion, ruling that the three-year time bar “violates Plaintiff ’s substantive due process rights under the United States Constitution and New Mex-ico Constitution[.]” Following additional discovery, Defendant filed a motion to reconsider, which the district court denied.{14} The parties then entered into a stipulated conditional directed verdict, which was approved by the district court. Therein, the parties agreed and stipulated that if the three-year statute of repose bars Plaintiff ’s claims against Defendant, she cannot recover, but if Plaintiff ’s claims are not time-barred, Defendant is liable to Plaintiff on her claims of medical mal-practice. The parties further stipulated and agreed to entry of a directed verdict against Defendant in the amount of $700,000, plus interest, subject to Defendant’s right to appeal the district court order that the three-year statute of repose violates Plain-tiff ’s right to substantive due process. The

district court filed the stipulated judgment, and Defendant appeals. See Kysar v. BP Am. Prod. Co., 2012-NMCA-036, ¶ 17, 273 P.3d 867 (concluding that an appeal will lie from a stipulated conditional judgment when specific conditions are satisfied).DISCUSSION{15} The Medical Malpractice Act aims “to promote the health and welfare of the people of New Mexico by making available professional liability insurance for health care providers in New Mexico.” Section 41-5-2. One way in which the Act seeks to accomplish this goal is by establishing a “termination point” for medical malprac-tice claims. Cummings v. X-Ray Assocs. of N.M., P.C., 1996-NMSC-035, ¶¶ 38-41, 121 N.M. 821, 918 P.2d 1321. That termination point is set forth in the Act’s three-year statute of repose, which states,

No claim for malpractice aris-ing out of an act of malpractice which occurred subsequent to the effective date of the Medical Malpractice Act may be brought against a health care provider un-less filed within three years after the date that the act of malprac-tice occurred[.]

Section 41-5-13. The statute is an “oc-currence” based rule, meaning the time period for filing a lawsuit begins to run at the time of the malpractice without regard to when the underlying cause of action accrues and without regard to discovery of the injury or damages. Cum-mings, 1996-NMSC-035, ¶ 50; Garcia ex rel. Garcia v. La Farge, 1995-NMSC-019, ¶ 14, 119 N.M. 532, 893 P.2d 428. See Chavez v. Delgado, 2014-NMCA-014, ¶¶ 5, 11, 316 P.3d 907 (concluding that the statutory “act of malpractice” for negligently prescribing medication is the discrete act of prescribing medication to the patient, not the date of injury or the last day the medication was taken), cert. denied, 2013-NMCERT-012, 321 P.3d 126; Meza v. Topalovski, 2012-NMCA-002, ¶ 19, 268 P.3d 1284 (stating that Cummings has interpreted Section 41-5-13 as an occurrence-based statute of repose rather than a discovery-based statute of limita-tions, and that “[t]he limitations period runs from the date of the occurrence, as opposed to the date of discovery,” and terminates the right of any action after the three years has elapsed even if no injury has manifested itself). Unlike a statute of limitation, which does not begin to run until the patient discovers, or reasonably should discover, the malpractice, “a statute



http://www.nmcompcomm.us/Advance Opinionsof repose terminates the right to any ac-tion after a specific time has elapsed, even though no injury has yet manifested itself.” Cummings, 1996-NMSC-035, ¶¶ 47, 50. The statute of repose “put[s] an end to prospective liability for wrongful acts that, after the passage of a period of time, have yet to give rise to a justiciable claim.” La Farge, 1995-NMSC-019, ¶ 14.{16} The Legislature may impose a statutory time deadline for commencing a cause of action as long as a reasonable time is provided for commencing suit. La Farge, 1995-NMSC-019, ¶ 33. However, if a plaintiff is left with an unconstitution-ally short period of time to file suit within the period of the statute of repose, due process is violated. Id. ¶ 26. The question presented in this case is whether Plaintiff had a reasonable period of time, consistent with due process, within which to bring her suit against Defendant.Standard of Review{17} Whether Plaintiff was deprived of due process presents a question which we review de novo. See Martinez v. Pub. Emps. Ret. Ass’n, 2012-NMCA-096, ¶ 27, 286 P.3d 613; Los Chavez Cmty. Ass’n v. Valencia Cnty., 2012-NMCA-044, ¶ 12, 277 P.3d 475. In addition, we review de novo a district court order granting or denying a motion for summary judgment. Chavez, 2014-NMCA-014, ¶ 4.Analysis{18} We begin with Terry v. New Mexico State Highway Commission, 1982-NMSC-047, ¶ 9, 98 N.M. 119, 645 P.2d 1375, abrogated on other grounds by Coleman v. United Engineers & Constructors, Inc., 1994-NMSC-074, 118 N.M. 47, 878 P.2d 996, in which the cause of action accrued three months before the applicable statute of limitations expired, and the lawsuit was filed after the statute of limitations expired. Our Supreme Court declared that it was required to decide “whether a cause of action, once accrued, may be barred by a period so short that it in effect prevents an injured party from obtaining relief.” Terry, 1982-NMSC-047, ¶ 10. Because it was persuaded that “fundamental con-siderations of due process” require that the limitation period not be applied to actions occurring within, but close to the end of the limitations period, id. ¶ 13, the Court held that an unreasonably short limitations period denies due process. Id. ¶ 1. While the Court concluded that three months was unreasonable, id. ¶¶ 1, 9, it did not provide any express guidelines for determining what will constitute

an “unreasonably short” period of time to result in a violation of due process. Nevertheless, in looking to the question that the Court said it was deciding, we conclude that to be “unreasonably short,” the period of time must be “so short that it in effect prevents an injured party from obtaining relief.” Id. ¶¶ 1, 10.{19} Terry was followed and applied to the statute of repose in La Farge, 1995-NMSC-019, ¶ 14. Following Terry, our Supreme Court held that “a statute of repose that allows an unreasonably short period of time within which to bring an accrued cause of action violates the Due Process Clause of the New Mexico Consti-tution.” La Farge, 1995-NMSC-019, ¶ 36. The Court concluded that, as applied to the plaintiff ’s claim, the statute of repose violated due process because, when the plaintiff first learned that he had a medi-cal malpractice claim against the doctor, only eighty-five days remained before the limitations period would expire. Id. ¶ 37. The Court, however, did not identify what criteria it used to conclude that the eighty-five day time period was “unreasonably short.”{20} In Cummings, 1996-NMSC-035, ¶ 57, the plaintiff discovered the malpractice about eighteen months before the statute of repose on her claim expired, and more than two years later, she filed her lawsuit. Recognizing La Farge as one of the “few exceptions” to the statute of repose, Cum-mings concluded that eighteen months was not too short a period of time, and held that the plaintiff lost her malpractice claim through her own lack of diligence. Cummings, 1996-NMSC-035, ¶¶ 55, 57.{21} Some guidance on how to apply the La Farge/Cummings due process exception to the statute of repose was subsequently provided in Tomlinson v. George, 2005-NMSC-020, ¶¶ 20-27, 138 N.M. 34, 116 P.3d 105. In Tomlinson, when the plaintiff discovered she had a potential medical malpractice claim against the defendant, she still had two years and eight months within which to file suit. Id. ¶ 2. After not-ing its holding in La Farge that eighty-five days was a constitionally unreasonably short period of time, and its holding in Cummings that one and one-half years was a constitutionally reasonable period of time, our Supreme Court concluded in Tomlinson that two years and eight months was a constitutionally reasonable period of time to bring suit. Tomlinson, 2005-NMSC-020, ¶¶ 23-24. The Court reiterated that if a plaintiff discovers a

potential medical malpractice claim within the statutory period of repose, but has an “unreasonably short period of time” within which to file her suit, she “may argue to the district court that Section 41-5-13 is unconstitutional as applied under the La Farge/Cummings due process analysis.” Tomlinson, 2005-NMSC-020, ¶ 27. The Court added:

We conclude that this flexibil-ity provides district courts with some level of discretion to relax Section 41-5-13’s strict three-year occurrence rule in unusual cases involving exceptional circum-stances as a matter of fairness while upholding the legislative protection for physicians and as-suring New Mexicans access to health care.

Tomlinson, 2005-NMSC-020, ¶ 27.{22} Thus, we conclude from the decided cases that there must be “unusual cases involving exceptional circumstances” re-sulting in an unusually short period of time within which to file suit before the La Farge/Cummings due process exception to the statute of repose applies. The period of time must be so short that the plaintiff is in effect prevented from being able to file suit.{23} In this case, when Plaintiff learned of her medical malpractice claim against Defendant, ten and one-half months re-mained under the statute of repose to sue Defendant. This is longer than the three months in Terry and the eighty-five days in La Farge, but shorter than the eighteen months in Cummings and the two years and eight months in Tomlinson, so we have no clear guidance based solely on the amount of time. Nevertheless, dur-ing the entire ten and one-half months period of time, the means for discover-ing Defendant’s name were available and within Plaintiff ’s control. Specifically, these were the EOB forms maintained by Plaintiff ’s own insurer and her own online banking statements. In addition, Plaintiff knew where Defendant’s office was in the Lovelace Women’s Hospital building, but she never went to the office to learn his name. Although Defendant no longer worked there, Sandia OB/GYN was still operating and maintained Plain-tiff ’s records. We acknowledge Plaintiff ’s initial assumption that she was seeking a Lovelace doctor, but the Lovelace re-cords she obtained failed to include the visit to Defendant on August 8, 2006, and Plaintiff knew that as early as November



http://www.nmcompcomm.us/Advance Opinions2008. Moreover, the fact that Plaintiff was initially confused about the month she saw Defendant does not excuse her asking for complete copies of her insurer’s EOB forms for 2006.{24} We cannot conclude, under the facts presented to us, that this case falls within the narrow La Farge/Cummings due pro-cess exception to the statute of repose. We therefore conclude that ten and one-half months was a constitutionally reasonable amount of time for Plaintiff to bring her medical malpractice suit against Defen-dant, and having failed to do so, Plaintiff ’s claims against Defendant are barred by Section 41-5-13. The district court having concluded otherwise, we reverse.CONCLUSION{25} The order of the district court is re-versed and the case is remanded for further proceedings consistent with this Opinion.{26} IT IS SO ORDERED.

MICHAEL E. VIGIL, Chief Judge

I CONCUR:RODERICK T. KENNEDY, JudgeM. MONICA ZAMORA, Judge (dissenting).

ZAMORA, J., dissenting.{27} I agree with the Majority, that in New Mexico due process precludes the ap-plication of Section 41-5-13’s strict three-year occurrence rule where malpractice is discovered so close to the expiration of the limitations period, as to effectively prevent the plaintiff from bringing a cause of action. Tomlinson, 2005-NMSC-020, ¶ 21 (“A statute of repose that allows an unreasonably short period of time within which to bring an accrued cause of action violates the Due Process Clause of the New Mexico Constitution.” (alteration, internal quotation marks, and citation omitted)); see Cummings, 1996-NMSC-035, ¶ 55; La Farge, 1995-NMSC-019, ¶ 36; Terry, 1982-NMSC-047, ¶ 1. I also agree that due process will only preclude the appli-cation of the three-year occurrence rule in “unusual cases involving exceptional circumstances.” Tomlinson, 2005-NMSC-020, ¶ 27. However, I do not agree that in this case Plaintiff had a constitutionally reasonable amount of time to pursue her cause of action. For that reason, I respect-fully dissent.{28} Addressing this issue, our Supreme Court has determined that eighty-five days is a constitutionally unreasonable time within which to file a claim while one and one-half years is constitutionally reason-

able. Id. As the Majority points out, the question is open as to whether a period of time between eighty-five days and one and one-half years is constitutionally reason-able. While New Mexico precedent does not provide a specific test to determine whether a plaintiff who discovers a poten-tial claim within the statutory period is left with a constitutionally reasonable period of time to file the claim, in my view, the Court’s analyses in Terry and Cummings are instructive.{29} In Terry, the court held that the application of a statute of repose where the plaintiff ’s cause of action accrued approximately three months before the limitations period was set to expire violated due process. Terry, 1982-NMSC-047, ¶ 1. In that case, the court based its determination of a constitutionally unreasonable time frame on its review of legislatively created periods of limitation. See Id. ¶¶ 16-17. The court noted that, for causes of action such as the one in that case, the Legislature had set the period of limitations at three years. Id. ¶ 17. The court also recognized that the Legislature had not specified any period of limitations that was less than one year. Id. The court concluded that “[t]here is no New Mexico limitations period which would give an aggrieved party less than three months to pursue a claim for personal injury, as [the statute of repose] would do under these facts.” Id. ¶ 16.{30} In Cummings, the court acknowl-edged several exceptions to the strict application of the three-year occurrence rule under Section 41-5-13, including the exception that applied where late discovery of malpractice leaves an unconstitutionally short period of time to pursue a cause of action. Cummings, 1996-NMSC-035, ¶¶ 55-57. The court concluded that none of the exceptions applied because despite the fact that the plaintiff had eighteen months to pursue her claim, she instead “sat on her rights and did not file any claim for more than two years” after she discovered the malpractice. Id. ¶ 57. The court held that the plaintiff “lost her medical malpractice claim through her own lack of diligence.”{31} In the present case, Plaintiff argues that using the Terry approach, the ten and one-half months she had to file her claim prior to the expiration of the limitations period, was constitutionally unreason-able. Plaintiff compares the ten and one-half month time frame to New Mexico’s legislatively created statutes of limitation, which all provide periods of limitation

greater than one year. Defendant, on the other hand, argues that under the Cum-mings approach, Plaintiff ’s claim is time barred as a result of her lack of diligence. The Majority does not address either of these arguments or approaches. Instead, the Majority concludes, in hindsight, that this case does not fall within the narrow La Farge/Cummings due process exception to the statute, because Plaintiff should have known Defendant was not a Lovelace doctor, and Plaintiff could have found Defendant’s name earlier by looking on her EOB, her bank statements, or by returning to Defendant’s office.{32} In my view, the Majority fails to consider Plaintiff ’s diligence in pursu-ing her claim, especially in light of the entirety of her circumstances. Plaintiff was living in Wyoming on September 22, 2008, when she learned that Defendant had misdiagnosed her. Less than three weeks later, On October 15, 2008, Plain-tiff had been diagnosed with widespread ovarian cancer and underwent extensive surgery to remove her uterus and ovaries. Nonetheless, between October 27, 2008 and November 3, 2008, Plaintiff sent seven medical record requests to Lovelace Hos-pital and Lovelace contractors attempting to understand what had happened and to obtain her entire medical file, which would include the identity of Defendant. Plaintiff called and was told that there was no re-cord of her visit with Defendant. Plaintiff retained counsel in December 2008, who also requested Plaintiff ’s medical records, sent several follow up requests, and wrote to Lovelace contractors attempting to ob-tain information related to Plaintiff ’s care.{33} Reviewing Plaintiff ’s medical re-cords, Plaintiff ’s counsel discovered that Plaintiff had been assigned three different medical record numbers. Plaintiff ’s coun-sel went to Lovelace Women’s Hospital, Lovelace Women’s Clinic, and Lovelace Westside Hospital, and obtained copies of Plaintiff ’s medical records, which were compared against the contents of Plain-tiff ’s original chart. Lovelace claimed it had made all Plaintiff ’s records available; however, additional records were later discovered at another Lovelace location. Later still, records were located in the film jacket of Plaintiff ’s May 2006 ultrasound.{34} The Majority asserts that Plaintiff should have known that Defendant was not a Lovelace doctor based on the fact that there was nothing in the response to Plaintiff ’s initial records requests related to her visit with Defendant. In light of



http://www.nmcompcomm.us/Advance Opinionsthe disorganization of Plaintiff ’s Lovelace records, I do not believe this is a fair as-sumption. The Majority also assumes that Plaintiff could have discovered Defen-dant’s identity by reviewing an EOB from August 2006, which the Majority insists was “in her control.” However, this is not supported by the record. The EOB for the August 2006 visit was mailed to Plaintiff at an address where she no longer received mail. Even though Plaintiff had filled out a change of address form she testified that she had not received the EOB. Plaintiff re-quested and received EOBs from Lovelace Health Plan for May, June, and July, but not August 2006. Plaintiff did not actually have the August EOB that identified Defendant until July 2010.{35} Additionally, the Majority assumes Plaintiff could have discovered Defendant’s identity by reviewing her bank statements that showed the co-pay for her visit to Defendant’s office. However, the bank state-ments did not reveal Defendant’s name. The entry showed a payment to “Sandia OB-GYN Assoc.” At that time, Lovelace used the name “Lovelace Sandia Health System.” It is not necessarily fair to assume that Plaintiff would have reviewed her bank statement two years later and deduce that Sandia OB-GYN was an entirely separate entity from “Lovelace Sandia Health System.”

{36} Finally, the Majority assumes that Plaintiff could have returned to the office where she had initially seen Defendant and identified him there. However, Defendant did not practice in that office after Febru-ary 2007 and there is no indication in the record that Plaintiff would have been able to retrieve any records pertaining to Defendant’s treatment if she had gone to the office. Moreover, Plaintiff was in New York recovering for eight months after her surgery, and, thereafter, she was traveling back and forth from Wyoming to New York as she continued her follow-up care. It is not reasonable to assume that Plaintiff could have physically gone to the office to track Defendant down.{37} Under La Farge a plaintiff who dis-covers malpractice “during the statutory period as it runs from the occurrence of the negligent act must have a reasonable period of time from the discovery to file his or her claim.” Tomlinson, 2005-NMSC-020, ¶ 23 (emphasis added). This require-ment is rooted in principles of fairness, which are inherent in the Due Process Clauses of the United States and New Mexico Constitutions. La Farge, 1995-NMSC-019, ¶ 36.{38} In my view, it is these principles of fairness that bring this case within the La Farge/Cummings exception. Plaintiff dili-

gently pursued her claim while she faced a grave diagnosis, a serious surgery, an eight-month recovery, and years of contin-ued treatment. While it is unfortunate that Plaintiff did not obtain the August 2006 EOB sooner, she certainly did not sit on her rights. She began investigation of her treatment history immediately after the accrual of her claim. She obtained counsel within three months of the accrual of her claim. She continued her efforts to identify Defendant after the filing of the complaint and amended her complaint three days after finally learning Defendant’s name.{39} For these reasons I believe that ten and one-half months was an unreason-ably short time for Plaintiff to name De-fendant in her complaint. I would affirm the district court’s decision. I also believe it is worth noting that in both Terry and La Farge, where the court found that the plaintiffs had a constitutionally unreason-able time to pursue their claims, the court applied the three-year limitation period that would have been applicable if the statute of repose had not been enacted. See Terry, 1982-NMSC-047, ¶ 17; see also La Farge, 1995-NMSC-019, ¶ 37.M. MONICA ZAMORA, Judge



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ClassifiedPositions

Family Law AttorneyMinimum 3 years experience. Must be mo-tivated self-starter. Performance based pay. Send resume, cover letter, writing sample to [email protected].

Las Cruces AttorneyHolt Mynatt Martínez, P.C., an AV-rated law firm in Las Cruces, New Mexico is seeking an associate attorney with 3-5 years of experi-ence to join our team. Duties would include providing legal analysis and advice, preparing court pleadings and filings, performing legal research, conducting pretrial discovery, pre-paring for and attending administrative and judicial hearings, civil jury trials and appeals. The firm’s practice areas include insurance defense, civil rights defense, commercial litigation, real property, contracts, and gov-ernmental law. Successful candidates will have strong organizational and writing skills, exceptional communication skills, and the ability to interact and develop collaborative relationships. Salary commensurate with ex-perience, and benefits. Please send your cover letter, resume, law school transcript, writing sample, and references to [email protected].

Request for Proposals General Counsel ServicesAlbuquerque Metropolitan ArroyoFlood Control Authority (AMAFCA)The Albuquerque Metropolitan Arroyo Flood Control Authority (AMAFCA) invites law firms and attorneys with offices located in the Greater Albuquerque area, to submit proposals in accordance with the specifica-tions contained in the Request for Proposals ("RFP"). Services will be required in the following areas of law: Area of Law: Real Estate and Condemnation; Contracts and Agreements; Environmental / Water Law; Inter-governmental Affairs; Personnel and Administration; Construction Law. It is also estimated that about 30-40 hours per month are required to perform these services. A copy of the Scope of Services with the AMAFCA-specific Campaign Contribution Disclosure Form, and complete RFP can be obtained from the AMAFCA office located at 2600 Prospect NE, Albuquerque, NM 87107, or by email via the link under Ads & Notices at www.amafca.org. Proposals must be submit-ted to AMAFCA in six (6) copies by 2:00 p.m. (local time) on December 31, 2015, and must include the AMAFCA-specific Campaign Contribution Disclosure Form. AMAFCA reserves the right to reject any or all proposals and to waive any informality or technicality in any proposal. Dated: October 22, 2015 /s/Jerry M. Lovato, P.E., Executive Engineer, Albuquerque Metropolitan Arroyo Flood Control Authority. State Bar: November 11, 18, and 25, 2015

Associate AttorneySmall medical malpractice defense firm seeks associate attorney with 3-10 years' experience, preferably in insurance defense and/or medical malpractice. Salary commensurate with expe-rience. Benefits package included. Please send resume and cover letter to the hiring manager at Brown & Gay, P.C., 3810 Osuna Road NE, Ste. 1, Albuquerque, NM 87109.

CYFD Attorney’sThe Children, Youth and Families Depart-ment is seeking to fill two vacant Children’s Court Attorney Senior Positions. Salary range is $39-$69K annually, depending on experience and qualifications. The attorney will represent the department in abuse/neglect and termination proceedings and related matters. The ideal candidates will have experience in the practice of law totaling at least three years and New Mexico licensure is required. The first Children’s Court Attorney Senior position is located in Alamogordo, New Mexico, and also covers Ruidoso. The second Children’s Court Attorney Senior position will be located in Silver City, New Mexico. Benefits include medical, dental, vi-sion, paid vacation, and a retirement package. Please contact the following for information on how to apply and to ascertain the clos-ing date for the position. Lynne Jessen (575) 373-6403 or [email protected]. The state of New Mexico is an EOE. To apply for these positions go to www.state.nm.us/spo/ and click on JOBS, then click on Apply for a Job Online.

Associate AttorneyEstablished Rio Rancho law firm is seeking an associate attorney with three to seven years of experience to join our firm. Our practice areas include real estate, corporate/business law, and trust/will/probate. Real estate expe-rience is strongly preferred. Compensation is DOE. Please submit a resume, three refer-ences and writing sample to P. O. Box 15698, Rio Rancho, NM 87174 or via email to [email protected]. All replies kept confidential.

AttorneyEstablished law-firm seeks attorney with ex-perience in local government law, contracts, and administrative proceedings to join fast-paced practice. Knowledge of environmental law and water rights is also essential. Experi-ence with economic development issues and/or ad valorem taxes helpful. Minimum of 5 years of experience required. Must be willing to regularly travel within New Mexico. Excel-lent writing skills and people skills required. Salary based on experience. Competitive benefits package. Interested applicants should submit their letter of interest and resume to [email protected].

Associate AttorneyRay McChristian & Jeans, P.C., an insurance defense firm, is seeking a hard-working as-sociate attorney with 5 years of experience in medical malpractice, insurance defense, in-surance law, and/or civil litigation. Excellent writing and communication skills required. Competitive salary, benefits, and a positive working environment provided. Please sub-mit resume, writing sample and transcripts to [email protected].

Associate AttorneyScott & Kienzle, P.A. seeks associate attorney with 0 to 5 years of experience. Practice areas include foreclosure, litigation, collections, bankruptcy, insurance, and Indian law. Re-sponsibilities include opening a file through pretrial, arbitration, trial, and appeal. Please email a letter of interest, salary require-ments, and résumé to Paul Kienzle at [email protected].

Assistant District AttorneyThe Fifth Judicial District Attorney’s of-fice has an immediate position open to a new or experienced attorney. Salary will be based upon the District Attorney Person-nel and Compensation Plan with starting salary range of an Associate Trial Attorney to a Senior Trial Attorney ($41,685.00 to $72,575.00). Please send resume to Dianna Luce, District Attorney, 301 N. Dalmont Street, Hobbs , NM 88240-8335 or e-mail to [email protected].

Lawer AdvancedProvide comprehensive legal services to the NM Division of Vocational Rehabilitation (NMDVR). The position serves as the Agency Attorney and provides interpretation and guidance to ensure that the NMDVR is in compliance with all applicable federal and state laws and regulations. Licensed as an at-torney by the Supreme Court of New Mexico or qualified to apply for limited practice license, which requires graduation from an accredited school of law, licensure (in good standing) in another state and sitting for the next eligible State Bar exam. Experience in Labor Law and Americans with Disabilities Act preferable. This position is a Pay Band 80. To apply, please visit http://www.spo.state.nm.us/State_Employment.aspx. For additional information on this position please contact NMDVR General Counsel, Rosa Lima at (505) 954-8519.



http://www.amafca.org


http://www.state.nm.us/spo/




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Paralegal WantedPlaintiff’s personal injury law firm in Los Lunas seeks paralegal. Successful candidate must be professional, motivated, organized, energetic and capable of multi-tasking in a fast-paced environment. Excellent written and oral communication skills are a must. Will consider legal assistant with excellent potential and motivation to become a para-legal. Competitive salary and benefits offered. All responses kept strictly confidential. Please send your cover letter, resume and references to Office Manager, PO Box 2416, Los Lunas, NM 87031.

Paralegal and Legal Assistant AdvancedNew Mexico State Land Office is accepting applications for the position of Paralegal. Strong work ethic and organizational skills are a must. Salary competitive and com-mensurate with experience and qualifica-tions. Please apply at www.spo.state.nm.us Ref#1234

DirectorThe New Mexico Center on Law and Poverty is looking for a new director. The New Mexico Center is a well-established, financially sound organization with a rich history of successful legal impact work. We are seeking a highly competent leader to join the organization as Deputy Director with the intention of becoming the Executive Director within two months to a year. Job duties include assisting in leading the organization, fundraising, managing finances and operations, liais-ing with the board, taking an active role in advocacy and preparing to step into the ED role. The ideal candidate is a proven leader, having been successful in leading advocacy campaigns, non-profit management, fun-draising, working with public officials and media, and having a background in poverty or civil rights advocacy. History in NM and f luency in Spanish preferred. Reasonable non-profit salary. Good benefits. EEOE. To apply, send letter of interest and resume to [email protected].

Paralegal & Legal Assistant - Operational (NMDOT)The NMDOT seeks to fill a Paralegal & Legal Assistant – Operational position. The position provides assistance to Office of General Coun-sel attorneys and will conduct legal research, investigate facts and prepare legal documents; assist with employment, personnel, contracts and tort matters, including litigation, discovery and hearing preparation; will have primary responsibility for preparation of wage withhold-ing and garnishment files, pleadings and com-munications with creditors, debtors and other state and federal agencies. Direct experience drafting and preparing legal correspondence and pleadings, conducting legal research, main-taining a case management/tracking system and in providing support in employment, torts, civil rights or governmental entity defense. ProLaw experience is highly desirable. Candidate is required to become & / or maintain a current New Mexico Notary Public Commission. The minimum qualifications for this position require an Associate’s Degree in Paralegal Studies and two (2) years of work experience drafting and preparing legal correspondence and pleadings, conducting legal research and maintaining a case management / tracking system. A combination of education from an accredited college or university in a related field and direct experience in this occupation total-ing four (4) years may substitute for the required minimum qualifications. Position is a Pay Band 55, hourly salary range from $12.61 to $21.95, depending on qualifications and experience, with all state benefits to apply. Overnight travel throughout the state is occasionally required. A valid New Mexico driver’s license must be maintained at all times during employment. Working conditions: Primarily in an office setting requiring extensive personal computer and phone use, with occasional high pressure situations. Applicants must apply through the State Personnel Office: http:/www.state.nm.us/spo by the closing date of December 2, 2015. The New Mexico Department of Transportation is an equal opportunity employer.

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

Two Staff AttorneysThe Albuquerque-based Senior Citizens' Law Office, Inc. seeks two staff attorneys: a full time general staff attorney; and a part-time estate planning attorney. Full descriptions of the positions and the application process are posted on SCLO's home page under "News" at www.sclonm.org.

Legal AssistantSeeking professional, motivated, organized, highly skilled individual with great attention to detail and ability to multitask for posi-tion in busy, nonsmoking office. Excellent computer and organizational skills required. Bachelor’s degree or two years legal assistance experience required. Please email resume to [email protected].

Associate AttorneyGluth Law, LLC is currently seeking a full-time associate attorney to handle estate plan-ning, probate AND trust matters. Candidates must have excellent communication skills and enjoy working with people in a fast-paced environment. Candidates must be licensed to practice in the state of New Mexico and current on all CLE requirements. Salary is commensurate with experience and quali-fications. Please send resume to Gluth Law, LLC, 2455 E. Missouri, Ste. A, Las Cruces, New Mexico 88001, fax to (575) 556-8446 or email to [email protected]

Customer Service/Facilities AssistantThe State Bar of New Mexico seeks a Cus-tomer Service/Facilities Assistant to direct callers, greet visitors, handle meeting room reservations, set up meeting rooms, process billing for meeting space, assist with light ca-tering, AV and facilities management; excel-lent written and verbal skills and knowledge of Outlook, Excel and PowerPoint required; Spanish proficiency a plus. Compensation $12-$13/hour plus benefits. Email cover letter and resume to [email protected], EOE.

Assistant District Attorney The Second Judicial District Attorney’s office in Bernalillo County is looking for both entry-level and experienced prosecutors. Qualified applicants may be considered for positions in Violent Crimes, Crimes Against Children, Metropolitan Court, and other divisions in the office. Salary and job assignments will be based upon experience and the District Attorney Personnel and Compensation Plan. If interested please mail/fax/e-mail a resume and letter of interest to Jeff Peters, Human Resources Director, District Attorney’s Office, 520 Lomas Blvd., N.W., Albuquerque, NM 87102. Fax: 505-241-1306. E-mail: [email protected]., or go to www.2nd.nmdas.com. Resumes must be received no later than 5:00 pm on Friday November 27, 2015 to be considered.

Associate AttorneyBleus & Associates, LLC is presently seeking to fill (2) two Associate Attorney Positions for its new Uptown Albuquerque Office. (1) Senior Associate with 10+ years of experience and (1) Junior Associate with 0-9 years ex-perience sought. Candidates should possess Civil Litigation/Personal Injury experience and desire to zealously advocate for Plaintiffs. Trial experience preferred. Salary D.O.E. Please submit Resume's to Hiring Partner, [email protected]. All inquiries shall remain confidential.

http://www.spo.state.nm.us


http://www.state.nm.us/


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http://www.2nd.nmdas



Uptown Square Prime Office Space Available1474SF and 2324SF professional office space. High quality improvements can be modified or developed to Tenants specification. Great visibility and access. Convenient access to I-40. On site amenities include Bank of America and companion restaurants. Sur-rounded by nearby shopping, ample parking and Full Service Lease. Call John Whisenant or Ron Nelson (505) 883-9662 for more in-formation.

Services

Orthopedic SurgeonOrthopedic Surgeon available for case review, opinions, exams. Rates quoted per case. Send inquiries to: [email protected]

Office Space

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 conference rooms, a large waiting area, access to full library, receptionist to greet clients and take calls. Call 243-3751 for appointment to inspect.

Will or TrustIf you have any information about a will or trust created for Sharan Martinez, also known as Sharan Whitaker Martinez, in the Roswell or Clovis area, please contact Fran-cesca J. MacDowell, PO Box 328, Placitas, NM 87043, 505.404.8859, [email protected].

Miscellaneous

For Sale

Professional Office ClosingFor Sale: All Equipment and FurnishingsLocation (Journal Center) or furniture/equipment only. Available now, or can hold until December. Desks, filing cabinets, wait-ing room furniture, copier/scanner/printer/fax, phone system, refrigerator, bookshelves, artwork, office supplies, medical equipment, etc. $5,000 OBO. Call (505) 249-7715 to view or discuss pricing.

Positions Wanted

Are You Looking for a FT Legal Assistant/Secretary?7 years experience, Personal Injury or Insur-ance Defense, Gen./Civil Litigation, ONLY. Professional. Transcription, Proofreading/Formatting, Organized, Attn. to Detail, E-filing in Odyssey-CM/ECF, Cust. Svc. Exp., Basic Pleadings, Discovery Prep., Calendar-ing, File Maintenance,MSWord, MS Outlook, Excel. Please contact [email protected] for Resume, Salary Expectations and References.

ParalegalLitigation paralegal with background in large volume document control/manage-ment, trial experience, and familiar with use of computerized databases. This is an opportunity for a highly motivated, task & detail-oriented professional to work for an established, well-respected downtown law firm. Competitive benefits. Email resume to: [email protected]

Legal Secretary/AssistantWell established civil litigation firm seeking Legal Secretary/Assistant with minimum 3- 5 years’ experience, including knowledge of local court rules and filing procedures. Excellent clerical, organizational, computer & word processing skills required. Fast-paced, friendly environment. Benefits. If you are highly skilled, pay attention to detail & enjoy working with a team, email resume to: [email protected]

ParalegalBusy personal injury firm seeks paralegal with experience in personal injury litigation. Ideal candidate must possess excellent com-munication, grammar and organizational skills. Must be professional, self-motivated and a team player who can multi-task. Salary depends on experience. Firm offers benefits. Fax resumes to (505) 242-3322 or email to: [email protected]

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Holiday Rush!

Holiday Advertising Schedule

Due to holiday closures, the following advertising submissions for the Bar Bulletin will apply:

Dec. 30, 2015: Advertising submissions due Dec. 7, 2015

Jan. 6, 2016 issue: Advertising submissions due Dec. 9, 2015

For more advertising information, contact:Marcia C. Ulibarri at 505-797-6058 or email [email protected]






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9:00 a.m. Check In/ Registration 9:30 a.m. Welcome And Introductions

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11:35 a.m. Lawyer-To-LawyerPerspective:DutytoClientsandAffordabilityofOfficialSourcesGary Don Reagan, Esq., Gary Don Reagan, P.A., small law firm practitioner, former New Mexico State Senator and State Bar of New Mexico President

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