March 12, 2014 • Volume 53, No. 11 - nmbar.org · PDF file2014-NMCA-014, No. 32,719:...

Double Up by Mary Oelschlaeger (see page 3) Weems Art Gallery

Inside This Issue

March 12, 2014 • Volume 53, No. 11

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

Thank You, Mock Trial Volunteers ...................... 8

Welcome, New BBC Commissioners, by D.D. Wolohan ..................................................... 9

Clerk’s Certificates ................................................ 13

From the New Mexico Supreme Court

2014-NMSC-005, No. 34,018: De Leon v. Hartley .......................................... 19

From the New Mexico Court of Appeals

2014-NMCA-013, No. 32,139: State v. Armijo ................................................. 22

2014-NMCA-014, No. 32,719: Chavez v. Delgado .......................................... 25

2014-NMCA-015, No. 31,585: Quintana v. Acosta ......................................... 28

2 Bar Bulletin - March 12, 2014 - Volume 53, No. 11

2014 Annual Meeting – Bench and Bar Conference

July 17-19, 2014Hyatt Regency Tamaya Resort and Spa

1300 Tuyuna Trail, Santa Ana Pueblo, NM888-421-1442

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$159* - single/double$219* - Jr. Suite

$50/$60 (single/double) - Regency Club*Add $10 resort fee to room rates (discounted from $20).

Cutoff date: June 25

For more information contact Kris Becker, 505-797-6038.

Early Room Registration

Make it a Get-A-Way.

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Bar Bulletin - March 12, 2014 - Volume 53, No. 11 3

Notices ................................................................................................................................................................4Legal Education Calendar .............................................................................................................................6Thank You, Mock Trial Volunteers ...............................................................................................................8Welcome, New BBC Commissioners, by D.D. Wolohan ..........................................................................9Writs of Certiorari ......................................................................................................................................... 10List of Court of Appeals’ Opinions ........................................................................................................... 12Clerk’s Certificates ......................................................................................................................................... 13Recent Rule-Making Activity ..................................................................................................................... 16Opinions

From the New Mexico Supreme Court2014-NMSC-005, No. 34,018: De Leon v. Hartley ..................................................................... 19

From the New Mexico Court of Appeals2014-NMCA-013, No. 32,139: State v. Armijo ............................................................................ 22

2014-NMCA-014, No. 32,719: Chavez v. Delgado ............................................................... 25

2014-NMCA-015, No. 31,585: Quintana v. Acosta .............................................................. 28

Advertising ...................................................................................................................................................... 32

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

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

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

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

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

March 12, 2014, Vol. 53, No. 11

Cover Artist: Watercolor is Mary Oelschlaeger’s final stop in a lifetime of involvement in arts and crafts. She became a full-time painter after retiring from her last career position as a university professor in Speech-Language Pathology. Although she paints many subjects, Oelschlaeger’s goal is always the same—to expressively represent an everyday experience in a way that invites the viewer to pause and appreciate something never noted before, even though the object may be well known.

Table of Contents

Meetings

March

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

13 Elder Law Section BOD, Noon, State Bar Center

13 Public Law Section BOD, Noon, Montgomery and Andrews, Santa Fe

13 Business Law Section BOD, 4 p.m., via teleconference

14 Animal Law Section BOD, Noon, State Bar Center

14 Prosecutors Section BOD, Noon, State Bar Center

15 Young Lawyers Division BOD, 10 a.m., State Bar Center

18 Solo and Small Firm Section BOD, 11:30 a.m.; Presentation, noon, State Bar Center

state Bar Workshops

March

13 Civil Legal Clinic 3–6 p.m., Herman Sanchez Community Center, Albuquerque

18 Legal Resources for the Elderly Workshop 10–11:15 a.m., Presentation 12:30–3:30 p.m., Clinics Munson Senior Center, Las Cruces

19 Legal Resources for the Elderly Workshop 9 a.m.–noon, Clinics 12:30–1:15 p.m., Presentation Alamo Senior Center, Alamogordo

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

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

29 Legal Clinic 10 a.m.–2 p.m., Genoveva Chavez Community Center, Santa Fe

mailto:[email protected]




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NoticesProfessionalism Tip

With respect to the courts and other tribunals:

I will be a vigorous and zealous advocate on behalf of my client, but I will remember that excessive zeal may be detrimental to my client’s interests or the proper functioning of our justice system.

court neWsN.M. Commission on Access to JusticeMeeting Notice The next meeting of the Commission on Access to Justice is noon–4 p.m., March 21, at the State Bar Center. Interested par-ties from the private bar and the public are welcome to attend. More information about the Commission is available on the State Bar’s website, www.nmbar.org.

state Bar neWsAttorney Support Groups• March 17, 7:30 a.m. First United Methodist Church, 4th

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

• April 7, 5:30 p.m. First United Methodist Church, 4th

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

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

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

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

Animal Law Section‘Animal Talk’ Series Join the Animal Law Section for its monthly “Animal Talk” series from 11:30 a.m.–1:30 p.m., March 20, at the State Bar Center. Jan Hayes, founder and executive director of Sandia Mountain BearWatch, will discuss the biology of New Mexico black bears, the impact of the current drought on our bear population, the New Mexico Game and Fish bear study and the politics of wildlife conservation. Bring your lunch and join the section for a lively and informative discussion. Drinks and dessert provided. R.S.V.P. to Evann Kleinschmidt, [email protected].

Paralegal DivisionBrown-Bag CLE Series The Paralegal Division invites mem-bers of the legal community to bring a lunch and attend “What Legal Aid Can Provide to Your Client” (1.0 G) presented by Rosemary Traub. The program will be held from noon–1 p.m., March 12, at the State Bar Center (registration fee for attorneys–$16, members of the Paralegal Division–$10, non-members–$15). Reg-istration begins at the door at 11:45 a.m. For more information, contact Cheryl

Passalaqua, 505-247-0411, or Evonne Sanchez, 505-222-9352. Webcast to three locations: • Santa Fe: Montgomery & Andrews,

325 Paseo de Peralta, Santa Fe. Contact Donna Ormerod, 505-986-2520.

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

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

Solo and Small Firm SectionLuncheon and Speaker Series Solo and Small Firm Section welcomes members to its monthly board meetings at 11:30 a.m. at the State Bar Center, fol-lowed by a speaker at noon. On March 18, UNM School of Law Professor Antoinette Sedillo Lopez will present “Contemporary Law School Education.” On April 15, Jolene Gutierrez Kruger, a columnist for the Albuquerque Journal, will present “Mary, Levi, and the Journalistic Responsibilities of a Reporter.” R.S.V.P. to [email protected] the day before each program to reserve a free lunch.

Volunteer Attorney ProgramVolunteers Needed The Volunteer Attorney Program is seeking volunteer attorneys to participate in legal fairs in a variety of areas including family law, consumer law, public benefits, wills and estates, unemployment, con-tracts, landlord/tenant, immigration, and more. A legal fair in Albuquerque will be held from 3–7 p.m., March 13, at the Her-man Sanchez Community Center, 1830 William St. SE. A legal fair in Santa Fe will be held from 10 a.m.–2 p.m., March 29, at the Genoveva Chavez Community Center, 3321 Rodeo Rd. For more information, contact Jane Zhi, [email protected] or 505-797-6040.

Young Lawyers Division2014 Summer Fellowships The Young Lawyers Division is cur-rently accepting applications for its 2014

Summer Fellowships. YLD is offering two fellowships for the summer of 2014 to law students who are interested in working in public interest law or the government sec-tor. The fellowship awards are intended to provide the opportunity for law students to work for public interest entities or in the government sector in an unpaid position. The fellowship awards, depending on the circumstances of the position, could be up to $3,000 for the summer. To be eligible, applicants must be current law students in good standing with their school. Applica-tions for the fellowship must include: (1) a letter of interest that details the student’s interest in public interest law or the gov-ernment sector; (2) a résumé; and (3) a written offer of employment for an unpaid legal position in public interest law or the government sector for the summer of 2014. Students are not eligible for the fellowship if they are receiving class or school credit for the position. Applications containing offers of employment that are contingent upon the successful completion of a background check will not be considered unless verifi-cation of the successful completion of the background check is also provided. Submit applications to Ben Sherman, YLD Summer Fellowship Coordinator, Ben Sherman Law LLC, 800 Lomas Blvd. NW, Ste. 200, Albu-querque, NM 87102. Applications must be postmarked by March 28. Direct questions to Ben Sherman, [email protected].

unMLaw LibraryHours Through May 17Building & Circulation

Monday–Thursday 8 a.m.–10 p.m.Friday 8 a.m.–6 p.m.Saturday 8 a.m.–5 p.m.Sunday Noon–8 p.m.

ReferenceMonday–Friday 9 a.m.–6 p.m.Saturday–Sunday Closed

UNM Women’s Law CaucusProfessor Bergman Recipient of 2014 Justice Mary Walters Award UNM School of Law Professor Barbara Bergman is the 2014 recipient of the Justice






www.nmbar.org

New Mexico Lawyers and Judges

Assistance Program

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

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

Judges888-502-1289

www.nmbar.org/JLAP/JLAP.html

Submitannouncementsfor publication in the Bar Bulletin to

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

State Bar Center Meeting SpaCe An auditorium, one large conference room,

six small conference rooms, visiting attorney offices, and classrooms/meeting rooms

provide ideal accommodations for meetings, trainings, conferences, and mediations or arbitrations. Contact Alan Kroll, facilities

manager, 505-797-6037 or [email protected].

Mary Walters Award, presented annually by the UNM Women’s Law Caucus. Attend the award dinner at 6 p.m., March 14, at the UNM Student Union Building, Ballroom B. Each year, the Women’s Law Caucus chooses an outstanding woman in the New Mexico legal community to honor in the name of former Justice Mary Walters, who was the first woman appointed to the New Mexico Supreme Court. Tickets are $50 individu-ally or $350 for a table of eight. Purchase tickets online, https://secure.touchnet.com/C21597_ustores/web/product_detail.jsp?PRODUCTID=809&SINGLESTORE=tr.ue.

other BarsN.M. Defense Lawyers AssociationCLE Opportunity The New Mexico Defense Lawyers As-sociation will present “Same-Sex Marriage: Implications for New Mexico Employers” (1.0 G) from 12:30–1:30 p.m. on March 14 at Seasons Rotisserie & Grill. The seminar by Lorena Olmos, Karen L. Kahn, and Vanessa Kaczmarek of Modrall Sperling will follow a luncheon at 11:45 a.m. For more information and registration, visit www.nmdla.org or call at 505-797-6021.

N.M. Criminal Defense Lawyers AssociationLive CLE Webinar The N.M. Criminal Defense Lawyers Association is offering a live CLE webinar

The 2014–2015

Bench & Bar Directory

Is in Production2014–2015 Bench & Bar Directory

Update Your Contact Information by March 26 To verify your current information: Visit www.nmbar.org. Click on Find an Attorney and search by name.

To submit changes: Online: Visit www.nmbar.org, click on Contact Us Mail: Address Changes, PO Box 92860, Albuquerque, NM 87199-2860 Fax: 505-828-3765 Email: [email protected]

Publication is not guaranteed for information submitted after March 26.

on “Ethics and Internet Communications” from noon–1 p.m. on March 14. It is open to all attorneys. More information is avail-able at www.nmcdla.org.

Second Annual Trial Skills College New Mexico’s top criminal defense trial lawyers will be faculty for the N.M. Criminal Defense Lawyers Association Second Annual Trial Skills College on March 21–22 at the Greater Albuquerque Association of Realtors, 1635 University Blvd. NE, Albuquerque. Lectures and demonstrations include voir dire, cross, opening, and direct by attorneys includ-ing Barbara Bergman, Peter Schoenburg, Molly Schmidt-Nowara, Shannon Kenne-dy, Barry Porter, and Dick Winterbottom; small groups; and video-taped practice with one-on-one critiques. The program is limited to 32 slots for criminal defense practitioners (features an advanced track). For more information, visit www.nmcdla.org.

other neWsBranch Law FirmChampagne Reception The Branch Law Firm is hosting a Champagne Reception for the first “Meet and Greet” of the year for the N.M. Women’s Bar Association from 5–7 p.m., March 21, at the Albuquerque Country Club. All members of the bar are invited. R.S.V.P. to [email protected].


http://www.nmbar.org/JLAP/JLAP.html




https://secure.touchnet.com/

http://www.nmdla.org




http://www.nmcdla.org





Legal EducationMarch

13 Diligence in Business Transactions 1.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

14 Navigating the Privileges Minefield 5.5 G Live Seminar Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

18 Trials of the Century II with Todd Winegar

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

18 The Cybersleuth’s Guide to the Internet: Super Search-Engine Strategies and Investigative Research

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

18 Considering Ethics—A Mock Meeting of the Ethics Advisory Committee

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

18 Ethicspalooza: Ethically Managing Your Practice


18 “Crowd-funding” in Business Ventures: Raising Capital from the Public

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

20 Employment Law Torts in the Workplace


21–22 N.M. Criminal Defense Lawyers Trial Skills College

10.0 G Live Seminar N.M. Criminal Defense Lawyers

Association 505-992-0050 www.nmcdla.org

25 24th Annual Appellate Practice Institute


25 2013 YLD Seminar-Standing Out in a Tough Economy: Ethically Collaborating in the Recovery


25 Practical Tips and Advice from Judge Alan Torgerson


25 The Fear Factor: How Good Lawyers Get Into Bad Trouble


25 Designing and Drafting GRATS in Estate Planning


27 Solo and Small Firm Institute Practice Management: What You Don’t Know Can Hurt You

3.5 G, 2.0 EP Live Seminar Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

28 Skeptically Determining the Limits of Scientific Evidence V

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

28 Ethics of Multi-jurisdictional Practice

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

http://www.nmbarcle.org


















Legal Education www.nmbar.org

April

1 2013 Business Law Institute: Must Knows Across the Practice Spectrum


1 2013 Family Law Institute Day 1 4.0 G, 2.0 EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

1 Current Issues in Civil Procedure 2.0 G Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

1 Ethicspalooza: Ethically Managing Your Practice


1 Planning and Drafting Revocable Trusts


8–9 Review and Negotiating Franchise Agreements, Parts 1–2


15 2013 Real Property Institute 5.5 G, 1.0 EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

15 2013 Family Law Institute Day 2 6.0 G Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

15 Managing the Present and Planning for the Future A Look at Assisting Lawyers with Capacity Challenges and Planning for Succession


15 Ethicspalooza: Proper Trust Accounting


15 Creditor Interests in LLCs/ Partnerships


22–23 Law of Religious Organizations, Parts 1–2


25 The Brain-Smart Negotiator: Skills and Practices for the Effective Litigator

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

29 2013 Employment and Labor Law Institute


29 Fluff is for Pillows, Not Legal Writing

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

29 Ethicspalooza: Charging a Reasonable Fee


29 Practical Tips and Advice from Judge Alan Torgerson


29 Ethicspalooza: The Ethics of Social Media Use


29 Sale/Leaseback Transactions in Real Estate


30 Ethics, Technology and Small Firms 1.0 EP National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org























Thank You, Mock Trial Volunteers Esteban Aguilar The Hon. Henry Alaniz Angelica Anaya Allen Erika Anderson Holly Armstrong Thomas Banner Sarah Barnes Kimberly Bell Mark Benford Charles Bennett Florence Berger David Berlin Vicki Bertolino Paul Biderman Wallis Black Janet Blair Karen Boulanger Art Bova Sarah Bradley Billy Brown Jeff Buckels Stuart Butzier Gary Cade Ismael Camacho The Hon. Neil Candelaria Jerry Cantwell Jennifer Cardona Patty Carpenter Ramon Carrillo J. Ed Casados Briggs Cheney Betsy Clifford Camille Cordova The Hon. Rosemary Cosgrove‐Aguilar Michael Cox Kristin Dalton Hugh Dangler Michael Daniels Suzanne D'Avalon Jennifer Delaney Lauren Dixon Jerry Dixon Tom Domme Shannon Donahue Donna Dooris Robyn Dow Hope Eckert Holly English

Gail Evans Melissa Ewer Ella Fenoglio Ben Feuchter Kenneth Fladager Clay Foster Scott Fuqua Derek Garcia Kathleen Gardner Bridget Gavahan Douglas Goodfellow Mark Gordon David Grady Kevin Graham The Hon. Jason Greenlee Anthony Griego Ilyse Hahs‐Brooks Tim Hale Brian Haverly Jason Hawley John Hays Liz Heaphy David Hernandez Cristin Heyns Judy Hill Dennis Hill Lawrence Hill Cloyd Hinkle Kristopher Houghton Jeff Huggins Calvin Hyer Jack Jacks Heather Jaramillo Jeremy Jaramillo Will Jeffrey Karl Johnson Wendy Jones Aaron Jordan Paula Kahn Mary Keith Thomas Keleher Anne Kelly M. Karen Kilgore Jessica Kissinger John Kloss Donald Kochersberger Barbara Koenig Elizabeth Kriegel Nina Lalevic

The Hon. Gerard Lavelle Heather LeBlanc Hilari Lipton Laurie Longiaru Taylor Lueras Paul Mannick Jill Martinez Carrie Massey Stephen McIlwain Bryan McKay Margaret McLean Ronda McQuade Erin McSherry Raquel Medina‐Leyba Ranne Miller Ashley Minton The Hon. Karen Molzen Kyrstal Montoya Bill Moon Michael Moore Sandy Morrow Timothy Mortimer Stacy Moses Frederick Mowrer Jody Mullis Sri Mullis David Murphy Michael Nunez Robert O'Leary Mike Osborn Alonzo Padilla Shellie Patscheck Teri Pierce Nick Pino Thomas Popejoy Amy Propps Richard Pugh Susan Quintana Rachel Reinsvold Mark Rhodes Veronique Richardson David Richter J. Brent Ricks Iris Ring Marc Robert Justin Rodriguez Barbara Romo Judith Rosenstein Sonia Roth

Michael Rueckhaus Sonia Russo Joaquin Sanchez Romulo Sauñe Dan Shapiro Joseph Shattuck Max Shepherd Cindy Silva Andrew Simons Stefen Sloane Sarah Smith Karl Sommer Kenneth Stalter Mark Standridge Greg Steinman Cindy Stofberg Reginald Storment Jack Sullivan Reeve Swainston Mark Swanson Mia Touchet Nicholas Trost Gary Van Luchene Jaime Voita Hans Voss Mathew Wadsworth Alysha Wagley Stacey Ward Katie Webb Jane Webster Theresa Wilkes Patricia Williams Suzan Wood Joe Wosick Justin Young Lauren Zabicki

Thankyou,regionalmocktrialjudges,coordinators,andteacherandattorneycoaches.MocktrialiscosponsoredbytheCenterforCivicValues,MetroCourt,thePublicEducationDepartmentandtheStateBarofNewMexico.


New BBC CommissionersWelcome, Welcome,

Chief Justice Petra Jimenez Maes congratulated six new Commissioners joining the Board of Bar Commissioners after each took the oath of office at the Feb. 28 meeting at the State Bar Center. New to the First Bar Commis-sioner District is Keya Koul of the Albuquerque law firm Brown and Gurulé. Returning to the Third Bar Com-

missioner District is Carolyn Wolf of the Santa Fe office of Montgomery & Andrews, P.A. Tina Cruz of Cruz Law Office in Taos is the new Commissioner from the Fourth Bar Commissioner District. The Seventh Bar Commissioner District welcomes Frank Chavez, a solo practitioner in Las Cruces. Also joining the BBC are YLD Chair Ben Sherman, a solo practitioner, and Paralegal Division Liaison Krista Gianes-Chavez of the New Mexico Judicial Standards Commission.

Frank Chavez

Krista Gianes-Chavez

Ben Sherman

Tina Cruz

Keya Koul

Carolyn Wolf


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

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

Petitions for Writ of Certiorari Filed and Pending:

Date Petition FiledNo. 34,568 State v. Jones COA 32,448 02/28/14No. 34,567 State v. James COA 33,020 02/27/14No. 34,566 State v. Montoya COA 32,682 02/27/14No. 34,564 State v. Nappi COA 31,609 02/27/14No. 34,565 State v. Kirk COA 32,464 02/26/14No. 34,561 State v. Sedillo COA 32,008 02/26/14No. 34,563 Benavidez v. State 12-501 02/25/14No. 34,562 Ahlgrim v. Franco 12-501 02/25/14No. 34,559 State v. Hernandez COA 30,978 02/24/14No. 34,558 State v. Ho COA 32,482 02/20/14No. 34,556 Lujan v. General Motors

Acceptance Corp. COA 32,631 02/20/14No. 34,554 Miller v.

Bank of America COA 31,463 02/19/14No. 34,552 State v. Ramirez COA 33,203 02/19/14No. 34,512 Guzman v. Bravo 12-501 02/19/14No. 34,550 Jernigan v. Romero 12-501 02/17/14No. 34,549 State v. Nichols COA 30,783 02/14/14No. 34,548 State v. Davis COA 28,219 02/13/14No. 34,546 N.M. Dept. Workforce Solutions v.

Garduno COA 32,026 02/13/14No. 34,560 Hartzell v. State 12-501 02/11/14No. 34,545 Ahlgrim v. Franco 12-501 02/11/14No. 34,544 State v. Gonzales COA 32,169 02/11/14No. 34,543 State v. Mallielle COA 32,959 02/10/14No. 34,541 Archuleta v.

THI of NM, LLC COA 31,950 02/10/14 Response filed 2/28/14No. 34,473 Mandeville v.

Presbyterian Healthcare COA 32,999 02/10/14 Response filed 2/20/14No. 34,522 Hobson v. Hatch 12-501 02/07/14No. 34,542 Chase v. State 12-501 02/06/14No. 34,532 State v. Garcia COA 32,930 02/03/14No. 34,470 MacLennan v. Michel COA 31,026 02/03/14No. 34,476 State v. Pfauntsch COA 31,674 01/27/14No. 34,465 Villanueva v. State 12-501 01/23/14No. 34,451 Curry v. Great Northwest

Insurance Co. COA 31,990 01/21/14 Response filed 2/11/14No. 34,467 Bertola v. State 12-501 01/17/14No. 34,501 Snow v. Warren Power COA 32,335 01/13/14No. 34,321 Skidgel v. Hatch 12-501 09/12/13No. 34,289 Tafoya v. Stewart 12-501 08/23/13No. 34,275 State v. Hernandez COA 30,230 08/09/13No. 34,303 Gutierrez v. State 12-501 07/30/13No. 34,170 Holguin v. Nance 12-501 05/23/13No. 34,095 Ramirez v. State 12-501 05/15/13 Response ordered; filed 8/7/13No. 34,067 Gutierrez v. Williams 12-501 03/14/13

No. 33,868 Burdex v. Bravo 12-501 11/28/12 Response ordered; filed 1/22/13No. 33,819 Chavez v. State 12-501 10/29/12No. 33,867 Roche v. Janecka 12-501 09/28/12No. 33,539 Contreras v. State 12-501 07/12/12 Response ordered; due 10/24/12No. 33,630 Utley v. State 12-501 06/07/12

Certiorari Granted but not yet Submitted to the Court:

(Parties preparing briefs) Date Writ IssuedNo. 33,725 State v. Pasillas COA 31,513 09/14/12No. 33,837 State v. Trujillo COA 30,563 11/02/12No. 33,754 State v. Garcia 12-501 11/02/12No. 33,877 State v. Alvarez COA 31,987 12/06/12No. 33,952 Melendez v.

Salls Brothers COA 32,293 01/18/13No. 33,930 State v. Rodriguez COA 30,938 01/18/13No. 34,076 State v. Martinez COA 32,424 04/19/13No. 34,124 State v. Cortina COA 30,317 05/24/13No. 34,122 State v. Steven B. consol. w/ State v.

Begaye COA 31,265/32,136 07/12/13No. 34,204 Faber v. King COA 31,446 07/12/13No. 33,994 Gonzales v. Williams COA 32,274 08/30/13No. 33,863 Murillo v. State 12-501 08/30/13No. 33,810 Gonzales v. Marcantel 12-501 08/30/13No. 34,271 State v. Silvas COA 30,917 09/20/13No. 34,300 Behrens v. Gateway COA 31,439 09/27/13No. 34,286 Yedidag v.

Roswell Clinic Corp. COA 31,653 09/27/13No. 34,349 Harrison v. Lovelace Health

System, Inc. COA 32,215 10/18/13No. 34,311 State v. Favela COA 32,044 10/18/13No. 34,295 Dominguez v. State 12-501 10/18/13No. 34,380 Cohen v.

Continental Casualty Co. COA 32,391 11/15/13No. 34,365 Potter v. Pierce COA 31,595 11/15/13No. 34,363 Pielhau v. State Farm COA 31,899 11/15/13No. 34,274 State v. Nolen 12-501 11/20/13No. 34,398 State v. Garcia COA 31,429 12/04/13No. 34,387 Perea v. City of

Albuquerque COA 31,605/32,050 12/04/13No. 34,400 State v. Armijo COA 32,139 12/20/13No. 34,455 City of Santa Fe v.

Tomada COA 32,407 01/10/14No. 34,435 State v. Strauch COA 32,425 01/10/14No. 34,499 Perez v. N.M. Workforce

Solutions Dept. COA 32,321/32,330 02/07/14No. 34,498 Hightower v. State 12-501 02/07/14No. 34,488 State v. Norberto COA 32,353 02/07/14No. 34,487 State v. Charlie COA 32,504 02/07/14No. 34,447 Loya v. Gutierrez COA 32,405 02/07/14No. 34,443 Aragon v. State 12-501 02/14/14No. 34,516 State v. Sanchez COA 32,994 02/14/14

Effective Feb. 28, 2014


Writs of CertiorariCertiorari Granted and Submitted to the Court:

(Submission Date = date of oral argument or briefs-only submission) Submission Date

No. 32,860 State v. Stevens COA 29,357 01/10/12No. 33,296 State v. Gutierrez COA 29,997 09/12/12No. 33,014 State v. Crane COA 29,470 11/13/12No. 33,324 State v. Evans COA 31,331 11/26/12No. 33,483 State v. Consaul COA 29,559 12/17/12No. 33,382 N.M. Human Services v.

Starko, Inc. COA 29,016/27,922 01/15/13No. 33,383 Presbyterian Health Plan v.

Starko, Inc. COA 29,016/27,922 01/15/13No. 33,384 Cimarron Health Plan v.

Starko, Inc. COA 29,016/27,922 01/15/13No. 33,594 Fallick v. Montoya COA 30,172 03/13/13No. 33,589 Zhao v. Montoya COA 30,172 03/13/13No. 33,632 First Baptist Church of Roswell v.

Yates Petroleum COA 30,359 03/13/13No. 33,548 State v. Marquez COA 30,565 04/15/13No. 33,567 State v. Leticia T. COA 30,664 04/30/13No. 33,566 State v. Leticia T. COA 30,664 04/30/13No. 33,592 State v. Montoya COA 30,470 05/15/13No. 33,565 State v. Ballard COA 30,187 05/30/13No. 33,226 State v. Olsson COA 29,713 05/30/13No. 33,971 State v. Newman COA 31,333 07/24/13No. 33,808 State v. Nanco COA 30,788 08/14/13No. 33,862 State v. Gerardo P. COA 31,250 08/14/13No. 33,993 Fowler v. Vista Care and

American Home Ins. Co. COA 31,438 08/14/13No. 33,896 Rodriguez v. Del Sol

Shopping Center COA 30,421/30,578 08/26/13No. 33,949 Rodriguez v. Del Sol

Shopping Center COA 30,421/30,578 08/26/13No. 33,770 Vaughn v.

St. Vincent Hospital COA 30,395 08/26/13No. 33,969 Safeway, Inc. v.

Rooter 2000 Plumbing COA 30,196 08/28/13No. 33,938 State v. Crocco COA 31,498 08/28/13No. 33,898 Bargman v. Skilled Healthcare

Group, Inc. COA 31,088 09/11/13No. 34,007 City of Albuquerque v.

AFSCME Local 3022 COA 31,075 09/24/13No. 34,039 Cavu Co. v. Martinez COA 32,021 09/30/13No. 33,884 Acosta v. Shell Western Exploration

and Production, Inc. COA 29,502 10/28/13No. 34,083 Amethyst v. Terhune COA 31,165 10/28/13No. 33,847 State v. Urquizo COA 30,337 10/30/13No. 34,013 Foy v. Austin Capital COA 31,421 11/14/13No. 33,970 State v. Parvilus COA 30,379 11/25/13No. 34,085 Badilla v. Walmart COA 31,162 12/04/13No. 34,146 Madrid v.

Brinker Restaurant COA 31,244 12/09/13No. 34,126 State v. Maurice H. COA 31,597 12/16/13No. 34,128 Benavides v.

Eastern N.M. Medical COA 32,450 12/18/13No. 33,604 State v. Ramirez COA 30,205 01/14/14No. 34,009 State v. Huettl COA 31,141 01/14/14No. 33,870 State v. Perez COA 31,678 01/15/14No. 33,796 State v. Vasquez COA 29,868 01/15/14No. 34,093 Cordova v. Cline COA 30,546 01/15/14No. 34,194 King v. Faber COA 34,116 02/24/14No. 33,999 State v. Antonio T. COA 30,827 02/26/14No. 33,997 State v. Antonio T. COA 30,827 02/26/14No. 34,150 Kimbrell v.

Kimbrell COA 30,447/31,491 03/24/14No. 34,074 State v. Maples COA 30,507 03/24/14No. 34,287 Hamaatsa v.

Pueblo of San Felipe COA 31,297 03/26/14No. 34,120 State v. Baca COA 31,442 03/26/14No. 34,235 State v. Alverson COA 32,046 04/28/14

Petition for Writ of Certiorari Granted and Remanded:

Date Order FiledNo. 34,165 Conley v. Janecka 12-501 02/20/14

Writ of Certiorari Voluntarily Dismissed:

Date Order FiledNo. 34,138 Jones v. Franco 12-501 02/25/14

Writ of Certiorari Quashed:

Date Opinion FiledNo. 34,232 Hinkle v. State Farm COA 31,707 02/28/14No. 34,044 State v. Riordan COA 31,795 02/28/14

Opinion/Decision on Writ of Certiorari:

Date Opinion FiledNo. 33,611 Bank of America v.

Quintana COA 30,354 02/27/14No. 33,789 Montoya v. State 12-501 02/27/14

Petition for Writ of Certiorari Denied:

Date Order FiledNo. 34,535 Hynoski v. Atwood COA 32,548 02/28/14No. 34,538 State v. Ellis COA 33,102 02/27/14No. 34,534 State v. Moseley COA 31,480 02/27/14No. 34,277 State v. Ramirez 12-501 02/27/14No. 34,530 State v. Haynes COA 32,951 02/25/14No. 34,529 State v. Koesters COA 32,889 02/24/14No. 34,527 Sosaya v. Steward 12-501 02/24/14No. 34,525 State v. Gibbs COA 32,854 02/24/14No. 34,486 Montoya v. Janecka 12-501 02/24/14


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

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

Effective Feb. 28, 2014

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

Published Opinions

No. 32426 11th Jud Dist McKinley CV-08-89, E LUCERO v NORTHLAND INSURANCE CO 02/24/2014 (reverse and remand)No. 30926 2nd Jud Dist Bernalillo CV-06-2117, T RICHTER v PRESBYTERIAN 02/26/2014 (affirm in part, reverse in part and remand)No. 31004 2nd Jud Dist Bernalilo CV-06-2117, T RICHTER v PRESBYTERIAN 02/26/2014 (affirm in part, reverse in part and remand)

Unublished Opinions

No. 32865 1st Jud Dist Rio Arriba CV-12-178, G SEXSON v T EDWARDS (affirm) 02/24/2014No. 32914 13th Jud Dist Sandoval LR-13-13, RIO RANCHO v A HASSLEY (reverse) 02/24/2014No. 33010 2nd Jud Dist Bernalillo LR-09-22, STATE v R MITCHELL (affirm) 02/24/2014No. 32956 2nd Jud Dist Bernalillo LR-09-22, STATE v R MITCHELL (affirm) 02/24/2014No. 31661 11th Jud Dist McKinley CR-09-229, STATE v I LEE (affirm) 02/24/2014No. 31963 2nd Jud Dist Bernalillo CR-09-6070, STATE v J MOTA (reverse) 02/24/2014No. 32291 4th Jud Dist San Miguel CR-11-26, STATE v A VIGIL (affirm) 02/24/2014No. 32292 4th Jud Dist San Miguel CR-11-26, STATE v A VIGIL (affirm) 02/24/2014No. 31724 13th Jud Dist Valencia CV-06-1242, G COLEMAN v HARTFORD INS CO (affirm) 02/25/2014No. 33169 12th Jud Dist Otero CR-13-42, STATE v J THOMAS (affirm) 02/27/2014No. 33205 2nd Jud Dist Bernalillo LR-10-31, STATE v P LEE (affirm) 02/27/2014No. 33286 2nd Jud Dist Bernalillo LR-10-09, STATE v B BACA (affirm) 02/27/2014No. 30156 4th Jud Dist Mora CV-04-42, J VALDEZ v A WALCK (affirm) 02/27/2014

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


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

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

Clerk’s Certificate of Name and

Address Change

As of January 3, 2014:Claudia Armijo f/k/a Claudia McKayN.M. Legislative Council Service411 State CapitolSanta Fe, NM 87501505-986-4605505-986-4680 (fax)[email protected]

As of February 11, 2014Leslee C. Bardin f/k/a Leslee Christine PetersenLCP, PC827-A Paseo del Pueblo NorteTaos, NM 87571575-758-5959575-758-0148 (fax)[email protected]

As of January 21, 2014Cecilia Dev f/k/a Cecilia Louise Dennis Court of Appeal - Sixth District333 W. Santa Clara Street, Suite 1060San Jose, CA [email protected]

As of January 27, 2014Caitlin Craft Dupuis f/k/a M. Caitlin CraftN.M. Supreme CourtPO Box 848237 Don Gaspar Avenue (87501-2178)Santa Fe, NM 87504-0848505-827-4935505-827-4837 (fax)[email protected]

As of February 5, 2014Marin J. Kowal f/k/a Marin J. MooberryRose L. Brand & Associates, PC7430 Washington Street NEAlbuquerque, NM 87109505-833-3036505-833-3040 (fax)[email protected]

As of February 6, 2014Jennifer Turner Nobles f/k/a Jennifer Ann Turner1200 Castle Rock CourtMidland, TX [email protected]

As of January 26, 2014Erin A. Olson f/k/a Erin Aninnia OlsonLaw Office of Erin A. Olson800 Lomas Blvd. NW, Suite 100Albuquerque, NM [email protected]

As of January 3, 2014Leila Jacquelyn Reilly f/k/a Leila J. MillikenOffice of the State EngineerPecos River Adjudication BureauPO Box 25102Santa Fe, NM [email protected]

As of February 13, 2014Melissa Sandness f/k/a Melissa Sandness-MarquezOffice of the Thirteenth Judicial District AttorneyPO Box 1919Los Lunas, NM 87031-1919505-861-0311505-861-7016 (fax)[email protected]

As of February 9, 2014Andrea Dawn Steiling Woody f/k/a Andrea Dawn Steiling519 W. McGraw StreetSeattle, WA [email protected]

Clerk’s Certificate Of Change To

Inactive Status

Effective January 31, 2014:Julia Louise Armstrong601 N. Main StreetBelen, NM 87002-4029

Effective December 5, 2013:Edward J. Hendrick Jr.6645 Butterfield Ridge DriveLas Cruces, NM 88007-8945

Effective January 31, 2014:Annette Nikki Borchardt16016 W. 94th DriveArvada, CO 80007-8206

Effective January 30, 2014:Judith M. OlivaU.S. Air Force AFNWC/JAN2000 Wyoming Blvd. SE, Suite 5668Kirtland AFB, NM 87117-0001

Effective January 28, 2014:Emilio Alva Jr.9323 Perrin Beitel Road, Suite 105San Antonio, TX 78217-3551

Effective January 27, 2014:Daniel C. Rislove417 W. Willow StreetChippewa Falls, WI 54279-2240

Effective January 14, 2014:Michael S. WilliamsColorado Department of Revenue1881 Pierce Street, Room 106Lakewood, CO 80214-1493

Effective January 30, 2014:Thad A. Danner2900 Vista del Rey NE, Apt. B32Albuquerque, NM 87112-8110

Effective January 21, 2014:Robert William Parker1200 Bandolina RoadSanta Fe, NM 87501-8801

Effective January 31, 2014:Nancy Y. Ko2082 21st AvenueSan Francisco, CA 94116-1207

Timothy B. Rode840 W. End Avenue, Apt. 2BNew York, NY 10025-5683

Effective January 29, 2014:Catherine Aguilar149 County Road 119Espanola, NM 87532

Effective January 27, 2014:John Eugene Bowman507 Wagner DriveMidland, TX 79706-4358

Clerk’s Certificate of Withdrawal

Effective February 7, 2014:Lawrence T. Buchmiller3209 General Stilwell NEAlbuquerque, NM 87111

In Memoriam

As of May 22, 2012:Joseph William Hodges Jr.63 Race Track RoadSilver City, NM 88061

As of February 3, 2014:James C. RitchiePO Box 1888Albuquerque, NM 87103-1888

Clerk’s Certificate of Reinstatement To Active Status

On February 10, 2014:Brandy R. ManningPO Box 725Coahoma, TX 79511-0725

Clerk’s Certificate of Admission

On February 11, 2014:Coleman M. ProctorSerpe Jones Andrews Callender Bell, PLLC2929 Allen Parkway, Suite 1600Houston, TX 77019713-452-4400713-452-4499 (fax)[email protected]













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

On February 10, 2014:DeVaughn Louis RobinsonLaw Offices of DeVaughn Louis Robinson14747 N. Northsight Blvd., #111-377Scottsdale, AZ [email protected]

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

Changes

Effective January 22, 2014, the firm name for the follow-ing attorneys will be shown as follows:Sandra Dene Morgan Little ([email protected])Jan B. Gilman-Tepper ([email protected])Roberta Suzanne Batley ([email protected])Tiffany Oliver Leigh ([email protected])Kymberleigh Grace Dougherty ([email protected])

The firm name, address, and telephone number are as follows:Little, Gilman-Tepper, Batley & Leigh, PAPO Box 26717500 Marquette Avenue NW, Suite 1310 (87102)Albuquerque, NM 87125-6717505-246-0500505-246-9953 (fax)

Dated Feb. 28, 2014

Clerk’s Certificate of Address and/or

Telephone Changes

Tyler John AtkinsParnall Law FirmPO Box 80092025 San Pedro NE (87110)Albuquerque, NM 87198-8009505-268-6500505-268-8708 (fax)[email protected]

John W. BlairU.S. Department of the InteriorOffice of Intergovernmental & External Affairs1849 C Street NW, Room 6211Washington, DC 20240202-208-1923202-208-1821 (fax)[email protected]

Christopher K.P. CardenasThe Lahann Law Firm665 E. UniversityLas Cruces, NM 88005575-523-4394888-694-7241 (fax)[email protected]

Robert C. CorbettCorbett & Kreisher, PLLCPO Box 246104 N. Antler StreetGladwin, MI [email protected]

Jennifer A. DelnickWill Ferguson & Associates1720 Louisiana Blvd. NE, Suite 100Albuquerque, NM 87110505-243-5566505-243-5699 (fax)[email protected]

Robert Lee EdwardsRay, McChristian & Jeans, PC5822 Cromo DriveEl Paso, TX 79912915-832-7200915-832-7333 (fax)[email protected]

Cheryl D. FairbanksCuddy & McCarthy, LLP7770 Jefferson NE, Suite 102Albuquerque, NM 87109505-888-1335505-888-1369 (fax)[email protected]

Paula I. ForneyGuebert Bruckner, PCPO Box 938806801 Jefferson Street NE, Suite 400 (87109-4390)Albuquerque, NM 87199-3880505-823-2300505-823-9600 (fax)[email protected]

Charles V. GarciaCuddy & McCarthy, LLP7770 Jefferson NE, Suite 102Albuquerque, NM 87109505-888-1335505-888-1369 (fax)[email protected]

Deirdre GleasonGleason Law Firm, LLC5 Bisbee Court, Suite 109-243Santa Fe, NM 87508505-333-8636505-819-5050 (fax)[email protected]

Marc A. Gordon1651 Patton Road SWAlbuquerque, NM [email protected]

Daniel H. Hernandez Sr.Ray, McChristian & Jeans, PC5822 Cromo DriveEl Paso, TX 79912915-832-7200915-832-7333 (fax)[email protected]

Gilberto Juarez1412 Lomas Blvd. NWAlbuquerque, NM 87104505-246-2026505-842-0686 (fax)[email protected]

Brian T. Judson1804 Dakota Street NEAlbuquerque, NM [email protected]

Adelia W. Kearny6509 Natalie Avenue NEAlbuquerque, NM [email protected]

Mary Kate Lamothe2049 Kiva RoadSanta Fe, NM [email protected]

Antoinette M. Sedillo LopezEnlace ComunitarioPO Box 8819Albuquerque, NM 87198-8819505-246-8972505-246-8973 (fax)[email protected]

http://nmsupremecourt.nmcourts.gov
























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

Jeffrey T. LuckyRay, McChristian & Jeans, PC5822 Cromo DriveEl Paso, TX 79912915-832-7200915-832-7333 (fax)[email protected]

Jeffrey Raymond McCombs600 Six Flags Drive, Suite 441Arlington, TX [email protected]

Howard C. MeyersRidenour, Hienton & Lewis, PLLC201 N. Central Avenue, Suite 3300Phoenix, AZ 85004602-254-9900602-254-8670 (fax)[email protected]

Jack MkhitarianN.M. Criminal Law Offices1008 Fifth Street NWAlbuquerque, NM 87102505-200-2982

Jared Alan MorrisHarmon Law Office812 Mitchell StreetClovis, NM 88101575-763-0077575-742-0077 (fax)[email protected]

Eric PainterRincon Law Group, PC1014 North Mesa, Suite 200El Paso, TX 79902915-532-6800915-532-6808 (fax)[email protected]

Stephen R. Park79 Farms Village RoadRocky Hill, CT [email protected]

Jeffry H. RayRay, McChristian & Jeans, PC5822 Cromo DriveEl Paso, TX 79912915-832-7200915-832-7333 (fax)[email protected]

Andrew M. Sanchez Sr.Cuddy & McCarthy, LLP7770 Jefferson NE, Suite 102Albuquerque, NM 87109505-888-1335505-888-1369 (fax)[email protected]

Leah M. Stevens-BlockSheehan & Sheehan, PAPO Box 27140 First Plaza NW, Suite 740 (87102)Albuquerque, NM 87103-0271505-247-0411505-842-8890 (fax)[email protected]

Michael A. TorrezNinth Judicial District Court109 West 1st Street, Suite 207Portales, NM 88130575-356-3515575-359-2140 (fax)[email protected]

Gregory L. Townsend3179 La Ronda Pl. NEAlbuquerque, NM [email protected]

Ramon Vigil Jr.Cuddy & McCarthy, LLP7770 Jefferson NE, Suite 102Albuquerque, NM 87109505-888-1335505-888-1369 (fax)[email protected]

Gabriel J. VillegasOffice of the Federal Public Defender6400 Tracy Way, No. 12St. Thomas, U.S. Virgin Islands 00802340-774-4449 Ext. [email protected]

Celia J. YapitaCatholic Charities3301 Candelaria Road NE, Suite BAlbuquerque, NM 87107505-724-4691505-254-2623 (fax)[email protected]

Joanna Braswell ZimmermanPO Box 2506Bloomfield, NM [email protected]


















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

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

Effective March 12, 2014

Pending Proposed Rule Changes Open for Comment:

Comment DeadlineNone

Recently Approved Rule Changes Since Release of 2013 NMRA:

Effective Date

Rules of Civil Procedure for the District Courts1-005.2 Electronic service and filing of pleadings

and other papers 01/29/131-047 Jurors 12/31/131-050 Judgment as a matter of law in jury trials;

alternative motion for new trial; conditional rulings 12/31/13

1-052 Nonjury trials; findings and conclusions 12/31/131-059 New trials 12/31/131-060 Relief from judgment or order 12/31/131-071.4 Statutory stream system adjudication suits;

ex parte contacts; general problems of administration 12/31/13

1-074 Administrative appeals; statutory review by district of administrative decisions or orders court 12/31/13

1-075 Constitutional review by district court of administrative decisions and orders. 12/31/13

1-077 Appeals pursuant to Unemployment Compensation Law 12/31/13

1-079 Public inspection and sealing of court records 12/31/131-089.1 Nonadmitted and nonresident counsel 12/31/131-120 Domestic relations action; scope; use of forms

in dissolution of marriage proceedings 05/31/13

Rules of Civil Procedure for the Magistrate Courts2-105 Assignment and designation of judges 05/05/132-107 Pro se and attorney appearance 12/31/132-111 Telephone conferences 12/31/132-603 Jurors 12/31/13

Rules of Civil Procedure for the Metropolitan Courts3-105 Assignment and designation of judges 12/31/133-106 Excusal; recusal; disability 12/31/133-107 Pro se and attorney appearance 12/31/133-603 Jurors 12/31/13

Civil Forms4-118 Order on motion to seal court records 12/31/134-119 Order on motion to unseal court records 12/31/134-206 Summons 12/31/134-602 Juror summons, qualification,

and questionnaire form 12/31/13

4-913 Writ of restitution (Restitution to owner) (Uniform Owner Resident Relations Act) 12/31/13

4-913A Order setting escrow deposit/appeal bond. (Uniform Owner Resident Relations Act) 12/31/13

Domestic Relations Forms4A-100 Domestic relations forms; short title; purpose

of forms; citations regarding use of forms (Withdrawn) 05/31/13

4A-100 Domestic relations forms; instructions and cautions regarding use of forms 05/31/13

4A 101 Domestic relations cover sheet 05/31/134A 101A Domestic relations information sheet 05/31/134A-102 Petition for dissolution of marriage

(no children) 05/31/134A-103 Petition for dissolution of marriage

(with children) 05/31/134A-104 Response 05/31/134A-105 Entry of appearance pro se 05/31/134A-101 (Withdrawn) 05/31/134A-200 Domestic relations forms; instructions

for stage two (2) forms 05/31/134A-201 Domestic relations forms for self-represented

parties; limited purpose of forms; cautions regarding use of forms (Withdrawn) 05/31/13

4A-201 Temporary domestic order 05/31/134A-202 Definitions (Withdrawn) 05/31/134A-202 Motion for temporary order 05/31/134A-203 Forms not available through courts

(Withdrawn) 05/31/134A-203 Motion to modify temporary order 05/31/134A-204 Domestic relations forms; divorce cases; forms

needed; filing fee (Withdrawn) 05/31/134A-204 Motion for referral to mediation

(child custody, timesharing, or visitation) 05/31/134A-205 Parenting plan and child support worksheet;

wage withholding order (Withdrawn) 05/31/134A-205 Motion for referral to mediation

(child support or other financial issues) 05/31/134A-206 Request for hearing 05/31/134A-207 Notice of hearing 05/31/134A-208 Notice of compliance with Rule 1-123 NMRA 05/31/134A-209 Verified motion for order to show cause 05/31/134A-210 Order to appear and show cause 05/31/134A-211 Objection to hearing officer report 4A-212 Interim monthly income and expenses

statement 05/31/134A-213 Interim order allocating income and expenses 05/31/134A-214 Community property and liabilities schedule 05/31/134A-215 Separate property and liabilities schedule 05/31/134A-300 Domestic relations forms; instructions for

stage three (3) forms 05/31/134A-301 Marital settlement agreement 05/31/134A-302 Custody plan 05/31/134A-303 Child support obligation 05/31/134A-304 Wage withholding order 05/31/134A-305 Final decree of dissolution of marriage 05/31/134A-310 Domestic relations forms; instructions

for default proceedings 05/31/13


Rule-Making Activity http://nmsupremecourt.nmcourts.gov.

4A-311 Affidavit as to Respondent’s failure to plead or otherwise defend 05/31/13

4A-312 Certificate as to the state of the record 05/31/134A-313 Application for default judgment and final

decree of dissolution of marriage 05/31/134A-321 (Withdrawn) 05/31/134A-322 (Withdrawn) 05/31/134A 401 Uncontested petition for paternity; forms

needed; filing fee 06/24/134A 402 Petition to establish parentage 06/24/134A 403 Final decree of parentage 06/24/13

Rules of Criminal Procedure for the District Courts5-108 Nonadmitted and nonresident counsel 12/31/135-115 Conduct of court proceedings 12/31/135-123 Public inspection and sealing of court records 12/31/135-205 Unnecessary allegations 05/13/135-212 Motion to suppress 12/31/135-301 Arrest without warrant; probable cause

determination; first appearance 12/31/135-302A Grand Jury Proceedings 12/31/135-501 Disclosure by the state 05/13/135-606 Jurors 12/31/13

Rules of Criminal Procedure for the Magistrate Courts6-107 Entry of appearance 12/31/136-108 Non attorney prosecutions 12/31/136-204 Issuance of warrant for arrest and summons 07/15/136-206 Arrest warrants 07/15/136-208 Search warrants 07/15/136-304 Motions 12/31/136-506 Time of commencement of trial 12/31/136-506A Voluntary dismissal and refiled proceedings 12/31/136-605 Jurors 12/31/136-802 Return of the probation violator 05/05/13

Rules of Criminal Procedure for the Metropolitan Courts7-107 Entry of appearance 12/31/137-108 Non attorney prosecutions 12/31/137-204 Issuance of warrant for arrest and summons 07/15/137-206 Arrest warrants 07/15/137-208 Search warrants 07/15/137-304 Motions 12/31/137-506 Time of commencement of trial 12/31/137-605 Jurors 12/31/137-802 Return of the probation violator 05/05/13

Rules of Procedure for the Municipal Courts8-107 Entry of appearance 12/31/138-111 Non attorney prosecutions 12/31/138-113 Court Interpreters 12/31/138-203 Issuance of warrant for arrest and summons 07/15/138-205 Arrest warrants 07/15/138-207 Search warrants 07/15/138-304 Motions 12/31/138-506 Time of commencement of trial 12/31/13 8-506A Voluntary dismissal and refiled proceedings 12/31/138-802 Return of the probation violator 05/05/13

Criminal Forms9-113 Order on motion to seal court records 12/31/139-114 Order on motion to unseal court records 12/31/139-201 Criminal complaint 12/31/139-202 Criminal complaint (Withdrawn) 12/31/139-207A Probable cause determination 12/31/139-212C Bench warrant 05/05/139-306 Commitment for preliminary hearing

(Withdrawn) 12/31/139-312A Cash receipt 12/31/139-408A Plea and disposition agreement 12/31/139-414 Order dismissing criminal complaint with

prejudice 12/31/139-415 Notice of dismissal non felony case 12/31/139-415A Notice of dismissal felony case (Withdrawn) 12/31/139-513 Juror summons, qualification, and

questionnaire form 12/31/13

Children’s Court Rules10-352 Judgments and appeals 12/31/13

Rules of Evidence11-501 Privileges recognized only as provided 12/31/1311-502 Required reports privileged by statute 12/31/1311-503 Lawyer client privilege 12/31/1311-504 Physician patient and psychotherapist patient

privilege 12/31/1311-505 Husband wife privileges 12/31/1311-506 Communications to clergy 12/31/1311-507 Political vote 12/31/1311-508 Trade secrets 12/31/1311-509 Communications to juvenile probation

officers and social services workers 12/31/1311-510 Identity of informer 12/31/1311-511 Waiver of privilege by voluntary disclosure 12/31/1311-512 Privileged matter disclosed under compulsion

or without opportunity to claim privilege 12/31/1211-513 Comment upon or inference from claim

of privilege; instruction 12/31/1311-514 News media confidential source or

information privilege 12/31/1311-1101 Applicability of the rules 05/05/13

Rules of Appellate Procedure12-201 Appeal as of right; when taken 12/31/1312-208 Docketing the appeal 12/31/1312-215 Brief of an amicus curiae 12/31/1312-601 Appeals from administrative entities and

special statutory proceedings 12/31/13

Uniform Jury Instructions for Civil Cases13-302F Special verdict form; examples 12/31/1313-1807 Pain and suffering 12/31/1313-1807A Loss of enjoyment of life 12/31/1313-1827 Punitive damages; direct and vicarious liability 12/31/13



Rule-Making Activity http://nmsupremecourt.nmcourts.gov.

Uniform Jury Instructions for Criminal Cases14-956 Criminal sexual penetration in the second

degree; force or coercion; essential elements 12/31/1314-956A Criminal sexual penetration in the second

degree; force or coercion; child 13 to 18; essential elements 12/31/13

14-970 Indecent exposure; essential elements 12/31/1314-970A Aggravated indecent exposure; essential

elements 12/31/1314-2241 Tampering with evidence; essential elements 12/31/1314-6019 Special verdict; tampering with evidence 12/31/13

Rules Governing Admission to the Bar15-101 Definition; title 05/14/1315-104 Application 05/14/1315-105 Application fees 05/14/1315-105 Application fees 12/06/1315-202 Place and time of examinations 05/14/1315-205 Administration and granding 12/06/1315-301.2 Legal services provider limited law license 05/14/1315-402 Qualifications 05/14/13

Rules of Professional Conduct16-100 Terminology 12/31/1316-101 Competence 12/31/1316-104 Communication 12/31/1316-106 Confidentiality of information 12/31/1316-117 Sale of a law practice 12/31/1316-404 Respect for rights of third persons 12/31/1316-505 Unauthorized practice of law;

multijurisdictional practice of law 12/31/13

Rules Governing Discipline17-102 Powers and duties 12/31/1317-207 Summary suspension 12/31/1317-208 Incompetency or incapacity 12/31/1317-211 Discipline by consent; stipulated facts 12/31/13

17-214 Reinstatement 12/31/1317-301 Applicability of rules; application of Rules of

Civil Procedure; service 12/31/1317-303 Statute of limitations 12/31/1317-307 Investigation of complaints 12/31/1317-314 Consideration by the Disciplinary Board 12/31/13

Rules Governing the Client Protection Fund Commission17A-005 Composition and offices of the commission 01/01/13

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

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

From the New Mexico Supreme Court and Court of Appeals

From the New Mexico Supreme Court

Opinion Number: 2014-NMSC-005

Topic Index:Appeal and Error: Interlocutory Appeal; and Prejudicial Error

Criminal Procedure: Grand Jury; Indictment; Prejudice; and Quashing of Indictment

Remedies: Writ of Superintending Control

ENRIQUE DE LEON,Petitioner,

v.HON. TEDDY L. HARTLEY,

Respondent,and

STATE OF NEW MEXICO,Real Party in Interest

No. 34,018 (filed December 30, 2013)

ORIGINAL PROCEEDING

KIRK C. CHAVEZCHAVEZ LAW

Clovis, New Mexicofor Petitioner

GARY K. KINGAttorney General

SCOTT FUQUAAssistant Attorney General

Santa Fe, New Mexicofor Respondent


MARGARET E. MCLEANAssistant Attorney General

Santa Fe, New Mexicofor Real Party in Interest

Opinion

Richard C. Bosson, Justice{1} On the eve of his trial, Defendant petitioned this Court for a writ of super-intending control that would direct the district court to quash his indictment because of irregularities in the selection of his grand jury. Agreeing with Peti-tioner that the integrity of the grand jury process was undermined by the manner in which grand jurors had been selected in this case, we issued a writ of super-intending control directing the district court to quash the indictment without prejudice to the State’s right to reinstate new criminal proceedings against Pe-titioner. We now issue this opinion to

explain the reasons for our decision to quash the indictment.I. FACTUAL AND PROCEDURAL

BACKGROUND{2} Petitioner filed a motion to quash his indictment arguing that the district court improperly enlisted the aid of the district attorney’s office in the selection of the grand jury panel that indicted Petitioner. Before ruling on the motion, the district court held an evidentiary hearing to take testimony concerning the process that was used for the selection of the grand jury.{3} The testimony before the district court revealed that the initial convening of potential grand jurors began with the receipt by the district court of a list of 100 potential grand jurors generated through

a randomized process in Santa Fe, New Mexico. Upon receipt of the list of poten-tial grand jurors, the district court jury clerk testified that she deleted some names from the list based upon hardship reports she received. Those remaining on the list were convened by the district court grand jury judge on July 6, 2011, for an orienta-tion session and to be sworn in. After the initial orientation and swearing in of the grand jurors, the process of selecting and excusing jurors for individual grand jury sessions was transferred to the district attorney’s office with no apparent further involvement by the district court.{4} For its part, a staff member of the district attorney’s office testified that she received from the district court the list of those grand jurors who were sworn in at the July 6, 2011, orientation session and used that list to call prospective grand juror members to appear at sessions of the grand jury scheduled and conducted by the district attorney’s office. The district attorney staff member also testi-fied that she accepted phone calls and voice mail messages from potential grand jurors who indicated they would not be able to at-tend scheduled sessions. She further testified that she would only register the receipt of such information to note that certain jurors would not be present and would advise the district attorney of those instances. But the staff member testified that at no time did she excuse any prospective jurors or make any comment to prospective or selected grand jurors about the cases that were to be presented to the grand jury.{5} While the staff member denied any involvement in excusing grand jurors, the list of those grand jurors who were called for the session of the grand jury that indicted Petitioner reflects that several grand jurors were excused—though by whom is unclear. Indeed, the list of grand jurors used by the district attorney’s office contains many notations suggesting ac-tive involvement by someone within the district attorney’s office in deciding who would ultimately serve at the session of the grand jury that indicted Petitioner.{6} Despite the role that the district attor-ney’s office played in convening the grand jury that indicted Petitioner, the district court found that there was no fraud or prejudice to Petitioner in the conduct of the grand jury proceeding that resulted in his indictment. The district court therefore denied Petitioner’s motion to quash the indictment. Two days later Petitioner filed

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http://www.nmcompcomm.us/Advance Opinionsa motion with the district court asking that its order denying the motion to quash the indictment be certified for interlocutory appeal, which the district court also denied. Almost nine months later, Petitioner re-newed his motion for interlocutory appeal based on an opinion this Court had issued just a few weeks before. See State v. Bent, 2012-NMSC-038, 289 P.3d 1225. But once again, the district court denied Petitioner’s motion for an interlocutory appeal.{7} Left with no other options for review of the district court’s order denying his motion to quash the trial and on the eve of his trial based on that indictment, Petitioner filed his petition for a writ of superintending control with this Court. While the writ we issued directing the district court to quash the indictment provided Petitioner with all the relief to which he was entitled, we issue this opinion now to explain why the grand jury selection process used in this case was inappropriate and to also reiterate the need for correcting grand jury irregularities promptly brought to the attention of the district court before a matter goes to trial.II. THE PROPER FUNCTIONING

OF THE GRAND JURY REQUIRES THE DISTRICT COURT TO MAINTAIN COMPLETE CONTROL OVER THE SELECTION OF GRAND JURORS

{8} As this Court has previously recog-nized, the grand jury is not simply a tool of the prosecution. See Jones v. Murdoch, 2009-NMSC-002, ¶ 12, 145 N.M. 473, 200 P.3d 523 (cautioning against conflating “the role of the prosecuting attorney as an aide to the grand jury with the role of the grand jury itself ” and noting that the grand jury is not an arm of prosecution). The grand jury does, of course, serve as one method for ini-tiating criminal proceedings against some-one accused of a crime. See N.M. Const. art. II, § 14 (providing that “[n]o person shall be held to answer for a capital, felonious or infamous crime unless on a presentment or indictment of a grand jury or information”). But as a constitutional entity distinct from the district attorney, the grand jury plays an important role in serving to buffer against unfounded accusations. See State v. Ulibar-ri, 1999-NMCA-142, ¶ 10, 128 N.M. 546, 994 P.2d 1164 (noting the duty of the grand jury to protect citizens against unfounded accusations), aff ’d on other grounds, 2000-NMSC-007, 128 N.M. 686, 997 P.2d 818; see also United States v. Calandra, 414 U.S. 338, 343 (1974) (recognizing that the grand jury is responsible for protecting citizens

from unfounded criminal prosecutions). Some may question the degree to which the grand jury truly is able to serve as a check on an overzealous prosecutor, even when the system operates as it should. But if the grand jury is to play any role at all as a credible, independent entity charged with determining whether the prosecution has probable cause to go forward with criminal charges against the accused, the grand jury must remain free of the taint that would come from being perceived to be under the complete and absolute control of the prosecutor.{9} Notwithstanding the necessarily close relationship between the prosecu-tor and grand jury, our state constitution has assigned the district court judge the responsibility for convening the grand jury as prescribed by law. See N.M. Const. art. II, § 14. And in keeping with that constitutional command, our Legislature has recognized the need for maintaining some degree of separation between the grand jury itself and the prosecution by providing for the district court’s direct involvement in the entire process of as-sembling the grand jury. See NMSA 1978, § 31-6-1 (1983). For example, as required by the constitution, it is the district court who “may convene one or more grand juries at any time, without regard to court terms.” Id. It is also the district court who “shall summon and qualify as a panel for grand jury service such number of jurors as [the court] deems necessary.” Id. And finally, it is the district court who “may discharge or excuse members of a grand jury and substitute alternate grand jurors as necessary.” Id. Nowhere in that process is it the prerogative of the district attorney to decide who shall serve as a grand juror and who may be excused from service.{10} In his response to Petitioner’s mo-tion to quash the indictment, the district attorney made much of a provision in NMSA 1978, § 31-6-7(A) (2003), which provides that “[t]he district court shall as-sign necessary personnel to aid the grand jury in carrying out its duties.” Because the district court has supervisory control over the grand jury, see Rule 5-302A(F)(1) NMRA, we have no quarrel with a statu-tory provision recognizing the duty of the district court to ensure that the grand jury has the staff support it needs to carry out its functions. We also recognize the role the district attorney plays in assisting the grand jury once it is seated to decide on particular indictments. But we completely disagree with the notion that Section 31-6-

7(A) authorizes the district court to assign personnel outside of the court to carry out the district court’s own supervisory responsibilities over the grand jury.{11} It is for the district court, and the district court alone, to decide who shall serve as grand jurors. To permit the district attorney to take over that role is to sacrifice any perception that the grand jury is an entity distinct from the prosecutor that is capable of serving as a barrier against un-warranted accusations. We therefore reject any interpretation of Section 31-6-7(A) that would allow the district court to delegate its supervisory role over the selection of the grand jury to the district attorney’s office.III. THE INDICTMENT MUST BE

QUASHED BECAUSE PETITIONER PROMPTLY BROUGHT THE DEMONSTRATED IRREGULAR-ITY IN THE SELECTION AND EXCUSAL OF GRAND JURORS TO THE ATTENTION OF THE COURT WELL IN ADVANCE OF TRIAL

{12} Allowing the district attorney to play such a pivotal role in the selection of grand jury panels was condemned twenty-six years ago by our Court of Appeals. See State v. Apodaca, 1987-NMCA-033, ¶ 18, 105 N.M. 650, 735 P.2d 1156 (refusing to “condone the practice of prosecutors discharging grand jurors or selecting alternates”), overruled on other grounds by State v. Garcia, 1990-NMCA-065, ¶¶ 8, 12, 110 N.M. 419, 796 P.2d 1115. So it is no small irony that the district court actually relied on Apodaca to deny Peti-tioner’s motion to quash the indictment since the district court found no showing of fraud or prejudice related to the man-ner in which Petitioner’s grand jury was selected. But as we recently explained in Bent, 2012-NMSC-038, ¶ 37, the Court of Appeals in Apodaca was dealing with the appropriate remedy for a grand jury irregularity brought to its attention after the defendant was already convicted. In such circumstances, it may well make sense to require a showing of fraud or prejudice before a conviction resulting from an error-free trial is nonetheless overturned because of an irregularity at the grand jury stage. But here, the accused challenged the grand jury proceeding in a timely manner before trial. Indeed, it is difficult to imagine what more Petitioner could have done given that he filed his motion to quash the indictment almost immediately after being indicted and twice asked the district court to permit an interlocutory appeal of the issue.



http://www.nmcompcomm.us/Advance Opinions{13} In light of the language in Apodaca suggesting that the statutory provisions for excusing grand jurors are merely direc-tory, it is certainly understandable why the district court declined to grant relief by focusing on whether Petitioner had estab-lished fraud or prejudice flowing from the district attorney’s involvement in the actual selection or excusal of the grand jurors who indicted Petitioner. While Apodaca did not condone the practice of prosecutors becom-ing involved in the process of selecting grand jurors, the Court of Appeals none-theless refused to reverse the district court’s decision not to dismiss the indictment because there was “no showing of actual prejudice suffered by defendant.” Apodaca, 1987-NMCA-033, ¶ 18. The Court of Ap-peals reached that conclusion because it had already determined, relying on State v. Gunthorpe, 1970-NMCA-027, 81 N.M. 515, 469 P.2d 160, that the statutory provisions for selecting and excusing grand jurors were directory rather than mandatory. Id. ¶¶ 9-10. We question, however, Apodaca’s reliance on Gunthorpe to characterize the district court’s statutory role in selecting and excusing jurors as merely directory.{14} In Gunthorpe, the Court was only dealing with the method by which the district court selected and excused grand jurors. And it bears emphasizing that it was the district court itself who was deciding whom to select and excuse. As such, we believe the Court of Appeals in Gunthorpe was correct to characterize the statutory procedures by which the district court was to choose grand jurors as merely directory because there was no question that the process used by the district court did not compromise the impartiality of the pro-ceeding nor did it expose the process to the possibility of unfair influences. See Gun-thorpe, 1970-NMCA-027, ¶ 9 (recognizing that “‘[s]tatutory provisions which relate to the number and qualifications of jurors, or which are designed to secure impartiality or freedom from unfair influences, are ordinarily deemed to be mandatory; while those which prescribe mere details as to the manner of selection or drawing are usually regarded as directory’” (quoting 4 Ronald A. Anderson, Wharton’s Criminal Law and Procedure, § 1698 (1957))).{15} In contrast, Apodaca was addressing a situation in which the district court had transferred its oversight of the selection process to the district attorney. The Court of Appeals viewed the relevant statutes as directory because they “merely provide details as to the procedure to be followed

in selecting grand jurors.” Apodaca, 1987-NMCA-033, ¶ 18. While Apodaca relied on Gunthorpe to characterize the district court’s role as merely directory, we disagree with that conclusion. The entity charged with the actual selection and excusal of grand jurors is of paramount importance to the process. As such, the statutory provi-sions assigning that role to the district court should be seen as mandatory, not directory, because they are critical to ensuring that the process of impaneling a grand jury is impartial and free of unfair influences. See Gunthorpe, 1970-NMCA-027, ¶ 9. {16} Given the mandatory nature of the district court’s role in selecting grand jurors, we disagree with the assessment in Apodaca that the district court was correct in refusing to quash the indictment in the absence of an actual showing of fraud or prejudice by the accused. While the result in Apodaca was correct because the irregu-larities in the grand jury process had been rendered moot by the error-free trial that resulted in the defendant’s conviction, see Bent, 2012-NMSC-038, ¶ 37, when the im-proper involvement of the district attorney in the excusal of grand jurors is brought to the attention of the district court well before trial is set to begin the district court should take steps to remedy the irregularity irrespective of whether any actual fraud or prejudice is established when the improper involvement of the district attorney in the excusal of grand jurors is brought to the attention of the district court. To the extent that Apodaca can be read to suggest otherwise, it should not be followed.{17} The manner in which grand jurors are selected and excused goes to the very heart of how the public views the integrity of the grand jury system. The fact that anyone even casually acquainted with our grand jury system has heard of the indictment of the proverbial ham sandwich demonstrates the need to enforce those few provisions that ensure at least some degree of separa-tion between the prosecutor and the grand jury. U.S. v. Laurent, 86 F. Supp. 2d 71, 89-90 (E.D.N.Y. 2011) (restating the 1985 public summary by the Chief Judge of New York State “that a grand jury would indict a ‘ham sandwich’ if asked to do so by the prosecutor”). While there was no evidence presented in this case that the district attor-ney abused the control that he had over the selection and excusal of those grand jurors who ultimately indicted Petitioner, it would have been an almost insurmountable burden for Petitioner given that there was virtually no record made of the informal excusal

process that the district attorney apparently used. And as explained above, the district court’s reliance on Apodaca to require such a showing of prejudice by Petitioner, while understandable, was misplaced. Petitioner having established that the district attorney was in control of the actual selection and ex-cusal of the grand jurors and having brought that fact to the attention of the district court well before trial, the district court should have quashed the indictment and erred by refusing to do so.{18} While the selection of grand jurors can be a straightforward process, the im-portant role the district court has to play in that process should not be minimized. Delegating the selection and excusal of grand jurors to the prosecution only invites suspicion and guarantees challenges to a process that must be above reproach. We will not countenance a process that causes the diversion of scarce resources to investi-gate a process that can be easily structured to avoid even the hint of prosecutorial overreaching. The informality that may often accompany the process of excusing grand jurors at the last minute who present a compelling enough reason for not attend-ing a particular session of the grand jury, is exactly why the district court—not the district attorney—must oversee the process.{19} The district court is the constitu-tionally and statutorily designated neutral entity that is assigned the responsibility for determining which grand jurors sit in any particular case to decide the question of indictment. Without the district court actively involved in the entire grand jury process, public confidence in the integrity of the process is at risk. And if the integrity of the grand jury is called into question, there is little hope that the public at large, or the accused in particular, will view the grand jury as capable of returning well-founded indictments or serving as a real-istic barrier to an overzealous prosecution.{20} We therefore reiterate that the dis-trict courts in this state must not delegate their core supervisory responsibilities over grand jury proceedings. And when undeniable irregularities in the grand jury process are brought to the court’s attention well in advance of trial, as was the case here, a grand jury indictment resulting from that flawed process must be quashed.{21} IT IS SO ORDERED. RICHARD C. BOSSON,

Justice

WE CONCUR:CHARLES W. DANIELS, JusticeBARBARA J. VIGIL, Justice



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Certiorari Granted, December 20, 2013, No. 34,400


Opinion Number: 2014-NMCA-013

Topic Index:Appeal and Error: Harmless Error; Standard of Review; Prejudicial Error;

and RemandCriminal Law: Driving While Intoxicated

Government: District AttorneyEvidence: Blood/Breath Tests; Expert Witness;

and Scientific Evidence & Daubert StandardJurisdiction: Metropolitan Court

STATE OF NEW MEXICO, Plaintiff-Appellee,

v.EDWARD ARMIJO,

Defendant-AppellantNo. 32,139 (filed October 8, 2013)

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTYCHARLES W. BROWN, District Judge


Santa Fe, New MexicoRALPH E. TRUJILLO

Assistant Attorney GeneralAlbuquerque, New Mexico

for Appellee

BENNETT J. BAURActing Chief Public Defender

VICKI W. ZELLEAssistant Appellate Defender

Albuquerque, New Mexicofor Appellant

Opinion

Cynthia A. Fry, Judge{1} Defendant Edward Armijo appeals his first-offense conviction for driving under the influence of intoxicating liquor (DWI) entered by the metropolitan court and subsequently affirmed by the district court following on-record review. In this appeal, Defendant asserts four theories of trial error, including error in jury selec-tion, in the admission of hearsay, in the admission of improper opinion testimony, and cumulative error. Having reviewed the metropolitan court proceedings, we agree that—in the specific context of this case—there is a reasonable probability that the jury’s verdict may have been induced by the unqualified opinion testimony of a witness for the State. We therefore reverse on that basis. Because the remaining is-sues are unlikely to recur on remand, we

express no opinion on the other errors claimed by Defendant.BACKGROUND{2} Defendant was tried pursuant to a criminal complaint charging him with DWI, speeding, and failure to maintain a traffic lane. Because the jury acquitted him of failing to maintain a traffic lane and Defendant does not appeal his con-viction for speeding, only the conviction for DWI is at issue in this appeal. With regard to that charge, the State’s evidence at trial consisted of the results of a breath alcohol test and the testimony of two police officers. The State’s first witness, Officer Eric Hammon, testified that he used radar to determine that Defendant was driving forty-five miles per hour on a road with a posted speed limit of thirty-five miles per hour. Officer Hammon also saw De-fendant’s car drift to the right within his lane so that the passenger-side tires of his car touched the right-hand lane line. Of-

ficer Hammon pulled Defendant over for speeding and failure to maintain his lane. Officer Hammon testified that when he approached the car, Defendant was behind the wheel, there were two passengers in the car, and he “could smell the distinct odor of an alcoholic beverage emitting from him.” Officer Hammon also testified that Defendant’s eyes were “bloodshot and watery,” that he “could detect some slur-ring of his speech,” and that Defendant reported having had “one beer earlier in the evening.”{3} Officer Hammon called for a DWI unit to continue the investigation. Officer Marisa Martinez arrived ten minutes later to conduct a DWI investigation. Officer Martinez was the State’s second witness. She testified that Defendant’s eyes were bloodshot and watery, that she noticed an odor of alcohol, and that the Defendant told her he had a beer ten minutes before he was pulled over. Officer Martinez then administered three field sobriety tests: a horizontal gaze nystagmus test, a walk-and-turn test, and a one-leg-stand test. Defendant performed the horizontal gaze nystagmus test as instructed. The walk-and-turn test required Defendant to walk in a straight line for nine steps with his hands at his sides while touching heel-to-toe, to turn around, and to walk back in a similar fashion. In performing that test, Defendant missed touching his heel to his toes twice, did not turn in the way Officer Martinez instructed, and once raised his arms from his sides. The one-leg-stand test required Defendant to raise one foot six inches off the ground and maintain that pose while counting out loud for thirty seconds. Of-ficer Martinez testified that, while doing so, Defendant “was swaying while balancing and he raised his arms for balance.”{4} Officer Martinez determined that Defendant “was showing the signs of im-pairment,” handcuffed him, and took him to the transport center to test his breath alcohol content. Officer Martinez tested two breath samples and the breath card showing the test results was admitted into evidence at trial. That card showed Defen-dant’s breath scores for the two samples to be .06 and .05 grams per 210 liters of breath. At the close of Officer Martinez’s direct examination, the State asked her whether .06 and .05 are “a particularly high breath score,” before rephrasing the question to, “is that breath score over the legal limit?” Defendant’s objection to that question was sustained, and the State passed the witness to the defense.



http://www.nmcompcomm.us/Advance Opinions{5} Defendant then cross-examined Of-ficer Martinez and the State conducted a re-direct examination. At the end of that re-direct examination, the State returned to the topic of Defendant’s breath alcohol content, asking with regard to his breath scores of .06 and .05, “what does that indi-cate to you?” Defendant’s objection to that question was sustained, and the State asked “is a .06/.05 consistent with [D]efendant’s admission of one beer?” Officer Martinez answered “no, sir,” and the State followed up with the question “is a .06/.05 consis-tent with more than one beer?” Defendant objected again, the objection was again sustained, and the court instructed the jury “you are to disregard the line of question-ing.”{6} When the State then rested, Defendant moved for a directed verdict on all charges, which was denied except as to driving with a blood or breath alcohol content of .08 or more. See NMSA 1978, § 66-8-102(C)(1) (2008) (defining per se DWI). Defendant then rested. The jury ultimately returned its verdict acquitting Defendant of failure to maintain a traffic lane and convicting on the charges of speeding and driving under the influence. Defendant appealed to the district court, which affirmed, and this appeal follows.DISCUSSION{7} Defendant argues that Officer Mar-tinez’s assessment of his breath alcohol content results was “unqualified opinion testimony” that constituted “incurable error.” Defendant is correct that Officer Martinez’s opinion regarding the amount of alcohol he must have consumed in order to produce breath scores of .06/.05 was inadmissible. The State’s questions regard-ing whether those scores suggested that Defendant had consumed “one beer” or “more than one beer” sought opinion tes-timony for which no foundation was laid at trial. See Rule 11-703 NMRA (providing foundation requirements for expert testi-mony in the form of an opinion). Without such a foundation, the witness was not qualified to offer her opinion on the matter. See State v. Alberico, 1993-NMSC-047, ¶¶ 41-54, 116 N.M. 156, 861 P.2d 192.{8} In response, the State asserts that the testimony at issue amounts to no more than harmless error, specifically relying upon the metropolitan court’s admonish-ment to the jury that it should “disregard this line of questioning.” Notably, the State neither argues that the questions asked were proper nor suggests how any answers Officer Martinez gave to those

questions could possibly have been admis-sible. Instead, the State claims that “[t]he trial judge’s immediate curative instruc-tion remedied the prosecution’s isolated improper question and Officer Martinez’s answer.”{9} It is true that, “[g]enerally, a prompt admonition from the court to the [j]ury to disregard and not consider inadmissible evidence sufficiently cures any prejudicial effect which might otherwise result.” State v. Newman, 1989-NMCA-086, ¶ 19, 109 N.M. 263, 784 P.2d 1006 (emphasis added). However, where “inadmissible testimony [is] intentionally elicited by the prosecution,” the general rule does not apply and, “regardless of whether a trial court admonishes the jury not to consider the testimony, [appellate courts] must determine whether there is a reasonable probability that the improperly admitted evidence could have induced the jury’s ver-dict.” State v. Gonzales, 2000-NMSC-028, ¶ 39, 129 N.M. 556, 11 P.3d 131 overruled on other grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110; accord State v. Ruiz, 2003-NMCA-069, ¶ 6, 133 N.M. 717, 68 P.3d 957; see also State v. Saa-vedra, 1985-NMSC-077, ¶ 13, 103 N.M. 282, 705 P.2d 1133 (holding that admoni-tory instruction could cure intentionally elicited testimony only in the absence of a reasonable probability that inadmissible evidence induced the verdict), abrogated on other grounds by State v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783; cf. State v. Bartlett, 1981-NMCA-019, ¶ 18, 96 N.M. 415, 631 P.2d 321 (finding prosecutor’s facially improper question to be “prejudicial error and no attempt to admonish the jury to forget the question could possibly erase the effects”).{10} Thus, before determining that a curative instruction has cured what would otherwise be error, we must consider whether the offending testimony was un-solicited or was, instead, elicited by the State. In State v. Vialpando, the trial court’s offer to give an admonitory instruction to the jury was deemed to have cured the improper testimony of a witness who was asked when he had first met the defendant and who responded, “when he was in the State Penitentiary.” 1979-NMCA-083, ¶ 21, 93 N.M. 289, 599 P.2d 1086. On appeal, this Court acknowledged that such testimony would require a mistrial if “deliberately induced through questioning by the pros-ecutor who intended that the objectionable response be made by the witness.” Id. ¶ 23. In that case, however, “the witness’s

response was totally unexpected by the court and the attorneys.” Id. As a result, the error was curable by way of instruction, and not so prejudicial as to require a new trial. Id. ¶ 25. In so holding, this Court was “especially mindful of the lack of any improper motive preceding the witness’s unprompted utterance.” Id. ¶ 27.{11} In contrast, similar testimony was considered sufficiently prejudicial to require a new trial in Saavedra. In that case, a witness who was asked how long he had known the defendant responded “[s]ince he got out of the penitentiary.” 1985-NMSC-077, ¶ 8. On appeal, our Supreme Court noted that the prosecu-tor had asked an identical question of the same witness at a grand jury hearing and received “an almost identical answer.” Id. ¶ 9. Thus, the Court noted that—unlike in Vialpando—a “lack of improper motive” could not be presumed in Saavedra, and the Court conducted a review for harmless error, ultimately concluding that a new trial was required. 1985-NMSC-077, ¶ 12. This requirement that appellate courts review for prejudice, notwithstanding a curative instruction, rests upon the sound policy that the prosecution should not be permitted to rely upon a trial court’s curative instruction to remove the taint of incompetent evidence that it has intention-ally placed before a jury. As has often been noted in similar circumstances:

When the error is exposed on ap-peal, it is met by the stereotyped argument that it is not apparent it in any wise influenced the minds of the jury. The reply the law makes to such suggestion is: that, after injecting it into the case to influence the jury, the prosecutor ought not to be heard to say, after he has secured a conviction, it was harmless[.]

State v. Frank, 1979-NMSC-012, ¶ 26, 92 N.M. 456, 589 P.2d 1047 (internal quota-tion marks and citation omitted).{12} In this case, the State drew repeated objections to questions intended to elicit Officer Martinez’s unqualified and inad-missible opinion regarding the significance of Defendant’s breath scores of .06/.05. On appeal, the State makes no attempt to justify the questions and, having reviewed the proceedings below, we can identify no proper purpose for those questions. Thus, the question of whether Defendant was prejudiced by Officer Martinez’s improper testimony cannot be answered simply by relying upon the metropolitan court’s



http://www.nmcompcomm.us/Advance Opinionscurative instruction; instead, we must actu-ally determine—in the particular context of this case—whether that inadmissible testimony was prejudicial or harmless.{13} For purposes of harmless error review, violations of the rules of evidence are non-constitutional error. State v. Marquez, 2009-NMSC-055, ¶ 20, 147 N.M. 386, 223 P.3d 931. Thus, the error at issue in this case can be deemed harmless only if “there is no reasonable probability the error affected the verdict.” Tollardo, 2012-NMSC-008, ¶ 36 (emphasis, internal quotation marks, and citation omitted). As recently explained by our Supreme Court, “harmless error review necessarily requires a case-by-case analysis . . . [of] whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” Id. ¶ 44 (internal quotation marks and citation omitted). In determining whether the impermissible evidence contributed to Defendant’s conviction, we must “evalu-ate all of the circumstances surrounding the error.” Id. ¶ 43. Those circumstances include “the error itself . . . includ[ing] an examination of the source of the error and the emphasis placed upon the error,” as well as the properly admitted evidence, at least to the extent such evidence provides “context for understanding how the error arose and what role it may have played in the trial proceedings.” Id.{14} Because there was no dispute that Defendant was driving a car, the only contested fact for the jury to decide with regard to the conviction here appealed was whether he was impaired by alcohol while doing so. As the jury was instructed at trial, it was to determine whether “as a result of drinking liquor the defendant was less able to the slightest degree, either mentally or physically, or both, to exercise the clear judgment and steady hand necessary to handle a vehicle with safety to the person and the public.” See UJI 14-4501 NMRA. The State’s evidence relevant to such a finding consisted of the breath alcohol content test results as well as the officers’ testimony regarding speeding, bloodshot eyes, slurred speech, the odor of alcohol, and Defendant’s performance on the field sobriety tests.{15} On appeal, Defendant points out that much of the evidence typically in-troduced in a DWI case was not present in this case. For instance, when Officer Hammon pulled him over for speed-ing, Defendant promptly and properly stopped his car. He was also cooperative

and behaved appropriately throughout his encounters with both Officer Hammon and Officer Martinez. He displayed no signs of impairment while getting out of his car and walking with Officer Martinez to the area in which she conducted the field sobriety tests. Defendant also points out that once Officer Martinez began the field sobriety tests, he performed the horizon-tal gaze nystagmus test as instructed and performed the other tests with only minor errors. And, finally, he agreed to submit to a chemical test that established his breath alcohol content at only a .06/.05.{16} Taken as a whole, the evidence intro-duced at trial was the type of evidence that is generally sufficient to support a convic-tion under the “impaired to the slightest degree” standard. See, e.g., State v. Soto, 2007-NMCA-077, ¶¶ 32-34, 142 N.M. 32, 162 P.3d 187 (collecting cases). Our task in this appeal, however, is not to determine whether the evidence was sufficient to support a conviction. See Tollardo, 2012-NMSC-008, ¶ 40 (noting “[t]here are some circumstances where . . . the evidence of a defendant’s guilt is sufficient even in the absence of the [district] court’s error, that still require the reviewing court to reverse the conviction if the jury’s verdict appears to have been tainted by error (internal quotation marks and citation omitted)). Instead, we must determine whether there is a reasonable probability that Officer Martinez’s unqualified opinion testimony “could have induced the jury’s verdict.” Gonzales, 2000-NMSC-028, ¶ 39. Keeping that task in mind, we note that the admis-sible evidence in this case could have sup-ported either a conviction or an acquittal, since a reasonable jury could have returned either verdict. As a result, it is possible that the actual verdict rendered in this case was a result of the jury’s consideration of Officer Martinez’s improper testimony.{17} Tollardo also directs us to consider “the importance of the erroneously admit-ted evidence in the prosecution’s case as well as whether the error was cumulative or instead introduced new facts.” 2012-NMSC-008, ¶ 43 (alterations, internal quotation marks, and citation omitted). In this regard, we note that—apart from the State’s attempts to elicit Officer Martinez’s opinion—no evidence was introduced at trial to establish whether, how, or to what extent a .06 or .05 breath alcohol content is indicative of impairment. Thus, Of-ficer Martinez’s unqualified opinion that Defendant would not have had breath

alcohol contents of .06 and .05 if he had only consumed one beer—if accepted by the jurors—may have provided them with their only means of assessing the breath scores. Officer Martinez’s impermissible testimony clearly suggested to the jury that Defendant must have consumed more than the one beer he admitted to drinking prior to the traffic stop. Further, because jurors may be unfamiliar with breath al-cohol contents and this jury was given no guidance on that topic, these jurors may have used Officer Martinez’s testimony suggesting that Defendant consumed more than one beer as their primary means of determining whether his breath scores indicated that he was impaired at the time he was pulled over. If they did so, the inadmissible testimony may have played a decisive role in the trial proceedings. See id. (instructing appellate courts to consider “what role [the error] may have played in the trial proceedings”). And, under the circumstances of this case, there is no sense in which Officer Martinez’s improper testimony could be considered cumulative.{18} Finally, Officer Martinez’s improper testimony in this case, like the improper material in Tollardo, “was the last piece of information that the jury received before formal instructions and closing argu-ments, magnifying the risk that the error would factor into the jury’s assessment of [the d]efendant’s guilt.” Id. ¶ 52. Our review of the trial proceedings in this case leaves us convinced that there is a reason-able probability that the jury’s verdict was the product of inadmissible testimony. The State’s final line of questions for Officer Martinez—both on direct examination and on re-direct—sought her unqualified opinion regarding the meaning and signifi-cance of Defendant’s breath alcohol con-tent. Given the fact that no other evidence was available to guide the jury in assessing that breath alcohol content, particularly when considered with the ambiguity of the properly-admitted evidence, it is apparent that the verdict in this case may have been induced by Officer Martinez’s improperly elicited testimony. Having reviewed “all of the circumstances surrounding the error,” id. ¶ 43, we conclude that the error at issue is prejudicial enough to require a new trial.{19} IT IS SO ORDERED. CYNTHIA A. FRY, Judge

WE CONCUR:M. MONICA ZAMORA, Judge J. MILES HANISEE, Judge




Certiorari Denied, December 11, 2013, No. 34,420



Topic Index:Appeal and Error: Interlocutory Appeal; and Standard of ReviewCivil Procedure: Statute of Limitations; and Summary judgment

Negligence: Wrongful DeathTorts: Medical Malpractice; and Wrongful Death

JOSE R. CHAVEZ, JR., son, individually and as representative of JOSE R. CHAVEZ, deceased, SOCORRO CHAVEZ, widow,

WILFRED CHAVEZ, MICHAEL CHAVEZ, and CLARENCE CHAVEZ, remaining adult sons of the deceased,

Plaintiffs-Appellees,v.

JAMES DELGADO, M.D. d/b/a POJOAQUE PRIMARY CARE, individually,Defendant-Appellant

No. 32,719 (filed October 17, 2013)

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTYRAYMOND Z. ORTIZ, District Judge

CLAYTON E. CROWLEYCROWLEY & GRIBBLE, P.C.

Albuquerque, New Mexicofor Appellees

TERRANCE P. YENSONAPRIL D. WHITE

YENSON, ALLEN & WOSICK, P.C.Albuquerque, New Mexico

for Appellant

Opinion

Linda M. Vanzi, Judge{1} As a matter of first impression, we must decide when the three-year time limitation contained in the Medical Malpractice Act (MMA), NMSA 1978, §§ 41-5-1 to -29 (1976, as amended through 2008), begins to run in a case where a health care provid-er is alleged to have negligently prescribed medication to a patient. See § 41-5-13. Defendant Dr. Delgado sought interlocu-tory review from this Court following the district court’s denial of his motion for summary judgment. The district court determined that the statute of limitations did not begin to run until a patient has been injured. In the alternative, the district court found that the malpractice continued throughout the ingestion period of the prescribed medication and that, therefore, Section 41-5-13 did not begin to run until the ingestion period had expired. We disagree and hold that Section 41-5-13’s three-year time limitation begins to run

on the date the medication is prescribed. Accordingly, we reverse the district court’s denial of summary judgment.BACKGROUND{2} The parties do not dispute the material facts of the case. On November 11, 2008, the decedent patient, Jose R. Chavez (Mr. Chavez), requested a prescription for Zo-cor. That same day, Dr. Delgado approved and wrote Mr. Chavez a prescription for Simvastatin, the same drug as Zocor. The next day, Dr. Delgado’s office called the prescription in to Mr. Chavez’s pharmacy. Mr. Chavez did not fill the prescription un-til three weeks later, on December 3, 2008. Shortly thereafter, on December 8, 2008, Mr. Chavez was hospitalized with drug-induced rhabdomyolysis, purportedly caused by an interaction of the Simvastatin and another medication Mr. Chavez was taking. Mr. Chavez was released from the hospital on January 12, 2009. He died on February 21, 2010.{3} On December 1, 2011, Plaintiffs brought a medical malpractice and wrong-

ful death action against Dr. Delgado, based on the allegedly negligent act of prescribing Simvastatin. The parties agree that Dr. Delgado is a “qualified healthcare provider” as defined by Sections 41-5-3 and 41-5-5 of the MMA and that the man-dates of the MMA govern the dispute. Dr. Delgado filed a motion for summary judg-ment in the district court, asserting that the three-year statute of repose contained in Section 41-5-13 barred Plaintiffs’ claims. The district court denied the motion, and this appeal timely followed.DISCUSSION{4} We review a district court’s decision to grant or deny summary judgment de novo. Maralex Res., Inc. v. Gilbreath, 2003-NMSC-023, ¶ 8, 134 N.M. 308, 76 P.3d 626; Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. Where genuine issues of material fact exist, summary judgment is inappropriate. See Self, 1998-NMSC-046, ¶ 6. However, when no material issues of fact are in dispute, we determine de novo whether a party is entitled to judgment as a matter of law. Id. In addition, “[s]tatutory interpretation is an issue of law, which we review de novo.” N.M. Indus. Energy Con-sumers v. N.M. Pub. Regulation Comm’n, 2007-NMSC-053, ¶ 19, 142 N.M. 533, 168 P.3d 105.{5} Dr. Delgado argues on appeal that the district court erred in its determina-tion that the three-year statute of repose did not begin to run until either: (1) Mr. Chavez had been injured, or (2) the last day Mr. Chavez ingested the prescribed medication. Rather, Dr. Delgado contends that the statute of repose began to run on either the date he wrote the prescription, on November 11, 2008, or, at the latest, the date his office called in the prescrip-tion to the pharmacy, on November 12, 2008. Thus, Dr. Delgado contends that the complaint filed on December 1, 2011, was outside of the three-year limitations period provided under the MMA. We begin with the statute.{6} Section 41-5-13 requires that a mal-practice claim be “filed within three years after the date that the act of malpractice occurred.” Our Supreme Court has noted that “Section 41-5-13 operates as a statute of repose rather than a statute of limita-tion.” Tomlinson v. George, 2005-NMSC-020, ¶ 8, 138 N.M. 34, 116 P.3d 105. In Cummings v. X-Ray Associates of New Mexico, P.C., the Court commented on the difference between the statutes of limita-tion and statutes of repose, explaining that



http://www.nmcompcomm.us/Advance Opinions[a] statute of limitations estab-lishes the time, after a cause of action arises, within which a claim must be filed. A statute of limitations begins to run when the cause of action accrues, the accrual date usually being the date of discovery [of the injury] . . . .On the other hand, a statute of repose terminates the right to any action after a specific time has elapsed, even though no injury has yet manifested itself. A statute of repose runs from a statutorily determined triggering event.

1996-NMSC-035, ¶¶ 49-50, 121 N.M. 821, 918 P.2d 1321 (citations omitted). {7} Furthermore, our courts have con-sistently held that “[t]he triggering event of Section 41-5-13 is determined by the occurrence rule. This event is unrelated to the accrual date of the cause of action, and does not entail whether the injury has even been discovered.” Cummings, 1996-NMSC-035, ¶ 50. Thus, the cause of action that triggers Section 41-5-13 begins to run from the act of malpractice. Cum-mings, 1996-NMSC-035, ¶ 53. Against this backdrop, we consider the sole issue presented in this case: what constitutes an “act of malpractice” for purposes of Sec-tion 41-5-13 when a physician negligently prescribes a medication to a patient?{8} Here, the district court found that an act of malpractice does not exist until there is an injury, regardless of whether the injury is discovered. Specifically, it found that the statute of repose could not begin to run when Dr. Delgado prescribed Mr. Chavez the Simvastatin because Mr. Chavez did not and could not suffer any injury until he actually started taking the Simvastatin and because there was no completed tort until at least that time.{9} In reaching its decision, the district court was apparently persuaded by Plain-tiffs’ argument that the foundation for the triggering event is set forth in Section 41-5-3(C)’s definition of “malpractice claim.” See id. (stating that “ ‘malpractice claim’ includes any cause of action arising in this state against a health care provider for medical treatment, lack of medical treatment or other claimed departure from accepted standards of health care which proximately results in injury to the patient”). In its oral ruling, the court stated that this case was “a causation question” and that there appeared to be “an issue of causation.” However, to the extent that

the district court adopted Plaintiffs’ argu-ment and held that there must be an action “which proximately results in injury to the patient” in order for Section 41-5-13 to begin to run, our courts have explicitly rejected such an accrual-based approach to interpreting the statute. See § 41-5-3(C); Cummings, 1996-NMSC-035, ¶ 50 (stating that the triggering event of Section 41-5-13 is unrelated to the accrual date of the cause of action); Garcia ex rel. Garcia v. La Farge, 1995-NMSC-019, ¶ 14, 119 N.M. 532, 893 P.2d 428 (same). More importantly, the language of Section 41-5-13 clearly establishes the triggering event as an “act of malpractice,” not a “malpractice claim.” See § 41-5-13 (“No claim for malpractice arising out of an act of malpractice . . . may be brought against a health care provider unless filed within three years after the date that the act of malpractice occurred.” (em-phasis added)).{10} Because the Legislature defined the term “malpractice claim” elsewhere within Section 41-5-13, but chose not to use that term in establishing the time limitation for bringing a claim, we must presume that it intended the phrase “act of malpractice” to have a different meaning. See Medina v. Holguin, 2008-NMCA-161, ¶ 14, 145 N.M. 303, 197 P.3d 1085 (“[A] court must look to the neighboring words in a statute to con-strue contextual meaning.”); Cummings, 1996-NMSC-035, ¶¶ 14, 52 (rejecting the plaintiff ’s attempt to “draw an identity” between an act of malpractice and the way the MMA defines a malpractice claim). We thus consider the meaning of “act of malpractice” in the context of Section 41-5-13.{11} Unlike “malpractice claim,” the phrase “act of malpractice” is not statu-torily defined. It is well established that “[t]he words of a statute, including terms not statutorily defined, should be given their ordinary meaning absent clear and express legislative intention to the con-trary.” State v. Ogden, 1994-NMSC-029, ¶ 24, 118 N.M. 234, 880 P.2d 845. An “act” is “[s]omething done or performed[.]” Black’s Law Dictionary 27 (9th ed. 2009); see Restatement (Second) of Torts § 2 (1965) (“The word ‘act’ is used through-out the Restatement of this Subject to denote an external manifestation of the actor’s will and does not include any of its results, even the most direct, im-mediate, and intended.”). “Malpractice,” on the other hand, is “[a]n instance of negligence or incompetence on the part of a [health care provider].” Black’s Law

Dictionary 1044 (9th ed. 2009). Interpret-ing the “act of malpractice” to extend to either the first or last day of the patient’s ingestion period, as Plaintiffs suggest and the district court held, would require us to define an “act of malpractice” based on the patient’s compliance with the directives of her health care provider. In our view, such a reading is contrary to our well-established case law and leaves open the possibility that a non-health care provider—here, Mr. Chavez—can reclassify the date of the act of malprac-tice based on the patient’s conduct and not that of the health care provider. We do not believe that is what the Legislature intended when it enacted the MMA. Accordingly, in keeping with the plain meaning of the statute, we hold that in a wrongful prescription case, the term “act of malpractice” refers to the discrete act taken by the health care provider of prescribing medication to a patient, not to any subsequent act of the patient.{12} Moreover, in Cummings, our Su-preme Court rejected a similar argument that an injury must exist before the limita-tions period in Section 41-5-13 can begin to run. In that case, the plaintiff argued that the term “occurrence” contained in Section 41-5-13 should be construed as a continuum that encompasses both the act of malpractice and the resulting injury. Cummings, 1996-NMSC-035, ¶ 13. The plaintiff characterized the negligent act as the misdiagnosis of a cancerous mass in her lung and the resulting injury as the metastasis of her cancer. Id. ¶ 15. Our Supreme Court declined to accept plain-tiff ’s characterization and instead viewed the negligent act and the resulting injury as discrete events. Id. ¶ 52. Cummings in-structs that the term “occurred” contained in Section 41-5-13 “does not inquire into whether the act [of malpractice] caused an injury, whether the injury is immediate or latent, whether the injury is discovered or not. The focus of this term is on the act without regard to its consequences.” Cum-mings, 1996-NMSC-035, ¶ 52.{13} On appeal, Plaintiffs attempt to distinguish Cummings. They contend that, because the plaintiff ’s cancer in that case existed at the time of the alleged misdiagnosis, she was already injured on the date that the physician committed the alleged act of malpractice. Plaintiffs argue that this case is different from Cummings because Mr. Chavez could not possibly suffer any injury until he began taking the Simvastatin, three weeks after Dr. Delgado



http://www.nmcompcomm.us/Advance Opinionsprescribed the medication. This distinc-tion does not change our analysis and is a distinction without a difference. The Cum-mings Court made clear that the “act of malpractice” in Section 41-5-13 is separate from the plaintiff ’s injuries, regardless of when those injuries arose. See Cummings, 1996-NMSC-035, ¶ 53 (“The plain lan-guage of Section 41-5-13 establishes the date of the act of malpractice as the only relevant factor, without any reference to any subsequent harm.”).{14} The principles on which the Cum-mings Court relied, as well as the manner in which subsequent cases have inter-preted the term “act of malpractice,” also dictate that the “act of malpractice” is a discrete event. “The purpose of a statute of repose is to put 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.” Jaramillo v. Heaton, 2004-NMCA-123, ¶ 12, 136 N.M. 498, 100 P.3d 204 (alteration, internal quotation marks, and citation omitted). Although the time limit can have harsh results, our courts have repeatedly found that the stringent time restriction on li-ability that Section 41-5-13 imposes is one of the key benefits the Legislature provided to health care providers when it enacted the MMA. See Cummings, 1996-NMSC-035, ¶ 29 (noting that “[t]he most notable benefit of qualification [under the MMA] was the specific decision by the [L]egislature to insulate qualified health care providers from the much greater li-ability exposure that would flow from a discovery-based accrual date” (internal quotation marks and citation omitted)). Accordingly, the Legislature’s goal in en-acting Section 41-5-13 was “to preclude almost all malpractice claims [subject to the MMA] from being brought more than three years after the act of malpractice.”

Cummings, 1996-NMSC-035, ¶ 40. We recognize that there are limited exceptions that may relax the strict requirements of Section 41-5-13, such as fraudulent con-cealment of a claim, or an unreasonable time limit in which to file a claim. See generally Tomlinson, 2005-NMSC-020, ¶¶ 22-23; Cummings, 1996-NMSC-035, ¶¶ 54-56; Garcia, 1995-NMSC-019, ¶¶ 37-38. None of those exceptions are at issue here. As a result, we follow our Supreme Court’s interpretation of Section 41-5-13 that has rejected any attempt to extend the statute of repose beyond three years in order to include a chain of events or a continuing course of treatment. See Tom-linson, 2005-NMSC-020, ¶¶ 2, 4, 10 (not-ing that the “act of malpractice” occurred when a doctor performed a closed external reduction of the plaintiff ’s fracture, even where the same doctor provided follow-up care to the plaintiff related to the fracture). Similarly, we believe defining an “act of malpractice” to accommodate a patient’s potential delay in filling a prescription, or to extend through the patient’s ingestion period, would expand the possible window of liability beyond what the Legislature intended in enacting Section 41-5-13, and we will not adopt such an interpretation. See Padilla v. Montano, 1993-NMCA-127, ¶ 23, 116 N.M. 398, 862 P.2d 1257 (“We will not construe a statute to defeat [its] intended purpose.”).{15} Finally, our determination that the “act of malpractice” in negligent prescrip-tion cases is the health care provider’s discrete act of prescribing the at-issue medication is consistent with rulings in other states. Although we rely solely on New Mexico law in reaching our conclu-sion here, we note that several other states with occurrence-based statutes have ar-rived at similar results. See Tullock v. Eck, 845 S.W.2d 517, 521 (Ark. 1993) (finding

that the allegedly negligent act occurred when the doctor wrote the prescription and declining to apply the continuous treatment theory); Deen v. Pounds, 718 S.E.2d 68, 73 (Ga. Ct. App. 2011) (finding that the statute of repose began to run on the date doctor first prescribed the at-issue medication); Cornell v. Merck & Co., 742 P.2d 667, 668 (Or. Ct. App. 1987) (holding that where statute states malpractice action may not be brought more than five years after treatment, the date on which the com-plaint alleged medication was prescribed was the date statute began to run).{16} We agree with Dr. Delgado that Section 41-5-13 terminates a plaintiff ’s malpractice claim within three years after the date the alleged act of malpractice oc-curred, not when the plaintiff was injured by the malpractice or when the plaintiff acquired knowledge of the injury. Accord-ingly, we conclude that Section 41-5-13 began to run on the date Dr. Delgado prescribed Simvastatin to Mr. Chavez. Because Plaintiffs did not timely file the complaint within the three-year limita-tions period—regardless of whether the trigger date was November 11, 2008, the date on which the prescription was writ-ten, or November 12, 2008, the date on which the prescription was called in to the pharmacy—their claims against Dr. Delgado are barred.CONCLUSION{17} We reverse the district court’s order denying Dr. Delgado’s motion for sum-mary judgment.{18} IT IS SO ORDERED. LINDA M. VANZI, Judge

WE CONCUR:CYNTHIA A. FRY, JudgeJ. MILES HANISEE, Judge




Certiorari Denied, December 12, 2013, No. 34,427



Topic Index:Appeal and Error: Standard of Review

Evidence: Exclusion of Evidence; Expert Witness; and Scientific Evidence & Daubert Standard

Torts: Medical Malpractice

RICHARD QUINTANA and BLANCA QUINTANA,Plaintiffs-Appellants,

v.STEVEN ACOSTA, M.D., NOR-LEA HOSPITAL DISTRICT, and

NOR-LEA GENERAL HOSPITAL,Defendants-Appellees

No. 31,585 (filed October 21, 2013)

APPEAL FROM THE DISTRICT COURT OF LEA COUNTYWILLIAM SHOOBRIDGE, District Judge

Opinion

Michael E. Vigil, Judge{1} In this medical malpractice case, Defendants moved to exclude the causa-tion opinion of Plaintiffs’ expert witness on the basis that the expert was unquali-fied to give his opinion regarding the efficacy of prophylactic antibiotics and that the testimony was scientific knowl-edge, which Plaintiffs were unable to establish as reliable. The district court agreed, excluded the expert’s causation opinion, and therefore dismissed the case. Concluding that the district court erred in ruling that the proposed testi-mony was scientific knowledge, which requires compliance with Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and State v. Alberico, 1993-NMSC-047, ¶ 58, 116 N.M. 156, 861 P.2d 192, we reverse.

DAYMON B. ELYLAW OFFICES OF DAYMON B. ELY

Albuquerque, New Mexico

BETTE VELARDEAlbuquerque, New Mexico

for Appellants

REMO E. GAYBROWN & GAY, P.C.

Albuquerque, New Mexicofor Appellee Acosta

THOMAS R. MACKMILLER STRATVERT P.A.

Albuquerque, New Mexicofor Appellees Nor-Lea Hospital

District & Nor-Lea General Hospital

I. BACKGROUND{2} Plaintiff Richard Quintana, who is diabetic, stepped on a nail while working in his yard and suffered a puncture wound to the bottom of his left foot. Plaintiff did not realize that he had been injured until that night as a result of his diabetes-related peripheral neuropathy. Peripheral neu-ropathy causes a loss of sensation in the limbs, such as the feet. After discovering the injury, Plaintiff went to the Nor-Lea General Hospital Emergency Depart-ment, where he was treated by Defendant Dr. Steven Acosta. The parties dispute the specifics of Dr. Acosta’s treatment, but they agree that a nurse cleaned the wound with an antibiotic scrub and that Dr. Acosta administered a tetanus immunization, determined that prophylactic antibiot-ics were unnecessary at that time, and instructed Plaintiff to monitor the wound for signs of infection and to follow up

with his primary care physician the next week. Dr. Acosta later stated that he did not administer prophylactic antibiotics to Plaintiff because “his wound looked clean,” and there was “no active bleeding, no surrounding erythema, [and] no other lesions or discharge.”{3} Despite the written discharge instruc-tions provided to him stating that he was to “[f]ollow up with [his primary care physi-cian] [next] week re: antibiotics,” Plaintiff did not seek a follow-up appointment with his primary care physician. Six days after his visit to the emergency room, Plaintiff traveled to Mexico, where he experienced a throbbing sensation and pain in his foot and observed drainage from the punc-ture wound. Plaintiff was hospitalized in Mexico, where he received intravenous antibiotics consisting of clindamycin and ceftriaxone, vancomycin and ceftriaxone, and vancomycin and imipenem. Plaintiff returned to the United States to receive medical care at the University of New Mexico Hospital, which culminated in a transmetatarsal amputation of his left foot a month after his initial injury.{4} Plaintiff and his wife, Blanca Quin-tana, brought a medical malpractice suit against Dr. Acosta, alleging that Dr. Acosta had “negligently treated [Plaintiff] by . . . failing to prescribe antibiotics, secure an immediate follow up, convey to the patient the importance of his injuries or otherwise act in a reasonable manner for physicians.” Plaintiffs also sued the Nor-Lea General Hospital (Hospital) as Dr. Acosta’s em-ployer, and the Nor-Lea Hospital District (Hospital District) as the owner and opera-tor of Hospital.A. Plaintiffs’ Expert Witness{5} Plaintiffs retained Dr. Robert P. Wahl, a board-certified emergency medical phy-sician, as their expert witness. Dr. Wahl presented his conclusions in a report in which he determined that “the essence of this case distills to the management of a puncture wound to the foot and an opinion as to whether antibiotics were indicated in the initial treatment of this patient.” Dr. Wahl noted the following factors:

1.) time of the injury: This is not clear from the documenta-tion provided; “early in the day” is the phrase used in the emer-gency department note. Timing plays a significant role in the potential for wound infection. Wounds untreated for greater than 6 hours have a higher infec-tion rate. Mr. Quintana presented



http://www.nmcompcomm.us/Advance Opinionsto the emergency department at 7:15 pm to be evaluated. The po-tential for his wound to be greater than 6 hours old is present. 2.) mechanism/extent of the injury: The mechanism appears to be a puncture wound with a nail through footwear (shoe and sock) to the sole of the left foot/toe. The patient was unaware of the injury likely due to diabetes-related peripheral neuropathy and the potential for deep penetration and/or repeated injury (taking more than one step with the nail punctured through his shoe) was present. Additionally, wounds to the foot through a rubber-soled shoe have an increased rate of infection with Pseudomonas spe-cies bacteria. . . . 3.) environment where the injury occurred: Mr. Quintana was gardening at the time of in-jury. The potential for inoculation of the wound with contaminants from the soil is present. . . . 4.) factors that contribute to an increased risk of infection in wounds: Mr. Quintana is a known diabetic patient, with the anatomic location of the wound being in the lower extremity, and a time delay from injury to treatment, all of which place Mr. Quintana at increased risk for wound infection.

{6} Dr. Wahl stated that “[g]iven the information provided, assuming this was a puncture wound to the plantar aspect of the left great or second toe, through footwear, with a delay of ‘hours’ before treatment, in a diabetic patient who had been working in his garden (potential for soil contamination), it is my medical opinion that antibiotics should have been initiated in the initial course of treatment from the emergency department to re-duce the potential for wound infection.” By failing to do so, Dr. Wahl testified, Dr. Acosta violated the standard of care. In a subsequent affidavit, Dr. Wahl noted that “the more time organisms have to ‘set up shop’ in terms of beginning to multiply permits these organisms to do damage if not treated appropriately.” Thus, Dr. Wahl concluded, “Dr. Acosta’s failure to prescribe antibiotics and his failure to properly instruct his patient reduced [Plaintiff ’s] chances, as a matter of rea-sonable medical probability, for a better

outcome and specifically reduce[d] the chances of recovering without having his foot amputated.”B. Motion to Exclude Dr. Wahl’s

Opinion Testimony{7} Dr. Acosta filed a motion to exclude the causation opinion of Dr. Wahl. Dr. Acosta first challenged Dr. Wahl as un-qualified to render an opinion regarding the effect of prophylactic antibiotics be-cause “Dr. Wahl’s expertise in emergency medicine does not . . . make him qualified or competent to render an opinion which is uniquely in the purview of a specialist in infectious disease.” Dr. Acosta further challenged Dr. Wahl’s opinion on the efficacy of prophylactic antibiotics as unreliable because it “has no support in science/medicine and should, therefore, be excluded[.]”{8} Plaintiffs responded that the mo-tion should be denied because “Dr. Wahl’s opinion that the administration of prophylactic antibiotics would have resulted in a better outcome is based on his thirty plus years of experience as an ER doctor in a hospital emergency room environment, treating thousands of patients,” that “Dr. Wahl’s opinions regarding the use of antibiotics are part of his differential diagnosis,” and that “[u]se of antibiotics is a necessary part of a board[-]certified emergency room physician’s duties.”{9} The district court granted Dr. Acosta’s motion based on its findings of fact and conclusions of law in which it concluded as a matter of law that Dr. Wahl was offer-ing scientific opinions based on scientific knowledge. The district court therefore considered whether the Daubert-Alberico factors were satisfied as we applied them in Parkhill v. Alderman-Cave Milling & Grain Co., 2010-NMCA-110, 149 N.M. 140, 245 P.3d 585, cert. quashed, 2013-NMCERT-005, 302 P.3d 1162, were satisfied. Concluding that the necessary predicate was not laid for the admis-sion of Dr. Wahl’s opinions as scientific evidence, the district court ordered that his opinions be excluded. The district court order states that Dr. Wahl’s opinion testimony is to be excluded from trial because “the opinion is subject to the Daubert/Alberico/Parkhill analysis and is not reliable or scientifically valid.” In ad-dition, the district court order states that Dr. Wahl’s opinion is to be excluded “on the basis that it goes beyond the scope of expertise of the average emergency room physician.”

II. DISCUSSION{10} Plaintiffs challenge the district court’s application of the Daubert-Alberico analysis to the admissibility of Dr. Wahl’s causation opinion. Specifically, Plaintiffs contend that Dr. Wahl’s causation opinion is not based on scientific knowledge, but on his knowledge, experience, and train-ing as an emergency room physician and that it is admissible as such. Dr. Acosta, on the other hand, asserts that the district court correctly concluded that Dr. Wahl’s causation opinion is both subject to and unreliable under the Daubert-Alberico factors. The Hospital and Hospital District similarly argue that “[b]ecause Dr. Wahl’s testimony involves scientific medical is-sues related to medical causation, specifi-cally the cause of [Plaintiff ’s] infection, the study of bacteria and the use of medical agents and treatment to control his infec-tion, the [district court] appropriately and correctly determined that Dr. Wahl’s opinion testimony must meet scientific evidentiary reliability and validity stan-dards and the [district court] properly applied the Daubert-Alberico evidentiary analysis.” For the reasons which follow, we agree with Plaintiffs.{11} The admission of expert testimony is governed by Rule 11-702 NMRA, which states: “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Thus, the ad-mission of expert testimony depends on three requirements: “(1) that the expert be qualified; (2) that the testimony be of assistance to the trier of fact; and (3) that the expert’s testimony be about scientific, technical, or other specialized knowledge with a reliable basis.” State v. Downey, 2008-NMSC-061, ¶ 25, 145 N.M. 232, 195 P.3d 1244. This case concerns only the first and third requirements.{12} In Loper v. JMAR, 2013-NMCA-098, ___ P.3d ___ (No. 31,357, July 3, 2013), we recently addressed our standard of review on appeal in determining whether the fore-going requirements have been satisfied. We said:

The admission of expert testi-mony lies in the discretion of the trial court. An abuse of discretion standard of review, however, is not tantamount to rubber-stamping the trial judge’s decision, and we



http://www.nmcompcomm.us/Advance Opinionsare not prevented from conduct-ing a meaningful analysis of the admission of the expert testimony to ensure that the trial judge’s decision was in accordance with the Rules of Evidence and the evi-dence in the case. Moreover, when the trial court applies a wrong legal standard in determining whether evidence is admissible, an abuse of discretion results. Finally, we observe that in light of the liberal approach of our rules of evidence to the admission of evi-dence and the heightened qualifi-cations of modern day jurors, any doubt regarding the admissibility of expert opinion evidence should be resolved in favor of admission, rather than exclusion.

Id. ¶ 18 (internal quotation marks and citations omitted).{13} The question of whether expert opinion involves scientific knowledge presents a question of law, which we review de novo. State v. Torres, 1999-NMSC-010, ¶ 28, 127 N.M. 20, 976 P.2d 20; State v. Ale-man, 2008-NMCA-137, ¶ 6, 145 N.M. 79, 194 P.3d 110. When the testimony involves scientific knowledge, a non-exclusive list of factors, which we refer to as the Daubert-Alberico factors, is considered in determin-ing whether the testimony is reliable and, therefore, admissible. These are:

(1) whether a theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known potential rate of error in using a particular scientific technique and the existence and mainte-nance of standards controlling the technique’s operation; (4) whether the theory or technique has been generally accepted in the particular scientific field; and (5) whether the scientific technique is based upon well-recognized scientific principle and whether it is capable of supporting opinions based upon reasonable probabil-ity rather than conjecture.

State v. Anderson, 1994-NMSC-089, ¶ 15, 118 N.M. 284, 881 P.2d 29 (internal quota-tion marks and citation omitted).{14} However, the Daubert-Alberico fac-tors apply only when the district court is evaluating the admissibility of scientific testimony. Torres, 1999-NMSC-010, ¶ 43. When the expert testimony is non-scien-

tific, but rather, based on the knowledge, training, or experience of the witness, the Daubert-Alberico factors do not apply. Loper, 2013-NMCA-098, ¶ 38. Neverthe-less, the non-scientific testimony must be reliable to be admissible. Id. “[W]hen test-ing the reliability of non-scientific expert testimony, rather than testing an expert’s scientific methodology as required under Daubert and Alberico, the court must evaluate a non-scientific expert’s personal knowledge and experience to determine whether the expert’s conclusions on a given subject may be trusted.” State v. Torrez, 2009-NMSC-029, ¶ 21, 146 N.M. 331, 210 P.3d 228.{15} Dr. Wahl’s opinion is directed to whether Dr. Acosta’s failure to administer prophylactic antibiotics in the emergency room reduced Plaintiff ’s chance for a better outcome. Our Supreme Court recognizes such a claim. In Alberts v. Schultz, 1999-NMSC-015, 126 N.M. 807, 975 P.2d 1279, our Supreme Court stated that a claim for a loss of chance is “predicated upon the negligent denial by a healthcare provider of the most effective therapy for a patient’s presenting medical problem,” which may consist of “the failure to timely provide the proper treatment.” Id. ¶ 11. “The injury is the lost opportunity of a better result, not the harm caused by the presenting prob-lem.” Id. ¶ 21. Such a claim, like any other medical malpractice claim, requires proof by expert testimony of duty, breach, loss or damage, and proximate cause. Id. ¶ 17. Specifically addressing proof of proximate cause in a loss-of-chance claim, our Su-preme Court noted two differing standards of proof: the “reasonable degree of medical certainty” standard, and the “reasonable degree of medical probability” standard and emphasized that “the standard in New Mexico is proof to a reasonable degree of medical probability.” Id. ¶ 29.{16} We begin with the first question of whether Dr. Wahl is qualified to render an opinion that Dr. Acosta’s failure to prescribe prophylactic antibiotics resulted in a loss of a chance of a better recovery by Plaintiff. Here, the experts on both sides agree that at issue in this case is Dr. Acosta’s management of Plaintiff ’s foot injury and whether antibiotics were indicated in his initial treatment. Dr. Acosta concedes that Dr. Wahl is qualified to testify as to the standard of care required of an emer-gency room physician in the treatment of a patient like Plaintiff. We agree. Dr. Wahl holds a medical degree from Wayne State University and is licensed to practice in

Michigan; he is board-certified in emer-gency medicine and has practiced emer-gency medicine for approximately thirty years; he has taught clinical instruction in emergency medicine at his alma mater for twenty-four years; he has a number of published works on various emergency medicine topics in peer-reviewed pub-lications and books; and he has been a guest speaker at a number of emergency medicine meetings and seminars.{17} We next address Plaintiffs’ conten-tion that the district court erred in con-cluding that the admissibility of Dr. Wahl’s causation opinion in this case must be ana-lyzed under the Daubert-Alberico factors because it is based on scientific knowledge. Again, whether expert testimony involves scientific knowledge presents a question of law, which we review de novo. Torres, 1999-NMSC-010, ¶ 28. In its findings and conclusions, the district court determined that “Dr. Wahl’s testimony regarding anti-biotic treatment is a determination of the external cause of the infection or disease itself and is scientific, as is the medicine and bacteriology that underlies it, and it is therefore subject to [the Daubert-Alberico] analysis, and must therefore be reliable un-der the appropriate evidentiary standards of [Daubert-Alberico].” After applying a Daubert-Alberico analysis, the district court concluded that “[t]he causation opinion of Plaintiffs’ expert witness, Rob-ert P. Wahl, M.D., is excluded from trial on the basis that the opinion is subject to the [Daubert-Alberico] analysis and is not reliable or scientifically valid as to assist the [trier] of fact pursuant to that analysis.”{18} We disagree. Dr. Wahl’s causation opinion does not constitute scientific knowledge and therefore is not subject to a Daubert-Alberico analysis. The parties’ dispute does not concern the specifics of the external cause of the subsequent infec-tion. Rather, they disagree as to whether the proper course of treatment included administering prophylactic antibiotics and if Dr. Acosta’s failure to do so reduced Plaintiff ’s chances for a better outcome. Dr. Wahl did not testify that administra-tion of prophylactic antibiotics to Plaintiff would have prevented his subsequent infection. Dr. Wahl was asked during his deposition, “Are you able to say that had this patient been treated as you recom-mended he should have been[,] he would have avoided the complications he had?” Dr. Wahl responded, “No, you can’t say that. . . . But you would have given him every reasonable opportunity and chance



http://www.nmcompcomm.us/Advance Opinionsto limit the potential for complication.” Given the concession that Dr. Wahl is qualified to testify about the standard of care, we agree with Plaintiffs that this “includes Dr. Wahl’s opinion that Dr. Acosta fell below the standard of care in not prescribing antibiotics—an opinion which by necessity involves an analysis of the efficacy of antibiotics in diabetic patients.” Instead of constituting scientific knowledge, we conclude that Dr. Wahl’s causation opinion is based on his special-ized knowledge regarding the treatment of

patients like Plaintiff that is based on his training and experience as an emergency room physician.III. CONCLUSION{19} The order of the district court is reversed.{20} IT IS SO ORDERED. MICHAEL E. VIGIL, Judge

WE CONCUR:JAMES J. WECHSLER, JudgeTIMOTHY L. GARCIA, Judge



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“Taking and Defending Depositions”April 4-6 & April 11-13, 2014

Cost: $1095 **DEADLINE FOR REGISTRATION IS 5:00 P.M. ON WEDNESDAY, MARCH 19, 2014**

This is an intensive 2 weekend “learning by doing” course offered by the School of Law to current, upper class law students and members of the legal profession. Attendance is mandatory for all classes, both weekends. You will practice taking and defending depositions of lay and expert witnesses. The director is Steve Scholl.How do you deal with obstreperous counsel? How do you effectively defend? How do you get the answers you seek under court-mandated time constraints? How do you get optimal information from expert witnesses? How do you test theories and close off avenues of escape? After this course, there will be no surprises at depositions and nothing you cannot handle in taking the effective deposition.

For more information and on-line registration visit:http://lawschool.unm.edu/cle/live_programs/depositions.php

or contact [email protected] or (505) 277-0680.

Community enrollment is limited to ten, so register now for this valuable opportunity to polish these fundamental practice skills!

This course has been approved by the NMMCLE Board for 31 general and 4.5 ethics/professionalism CLE credits. We will report a maximun of 24 credits from this course to

NM MCLE, 12 of which MCLE will carry over to meet 2015 requirements, as provided by MCLE Rule 18-201. Parking is free for all attendees in the Law School “L” lot only.

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The 2013 Annual Compliance Reports have been mailed to all active licensed New Mexico attorneys. The reports include all information for courses taken by 12/31/13.

All non-compliant attorneys have been assessed a late compliance fee, and the invoice for payment of the fee is included with the Annual Report. Non-compliant attorneys must complete their requirements immediately. On April 1, 2014 a second late compliance fee will be assessed for those attorneys who continue to be in non-compliance.

On May 1, 2014 the MCLE office will submit to the Supreme Court a list of all attorneys who have not completed their 2013 requirements and/or failed to pay assessed late compliance fees. The Supreme Court will then begin to initiate the suspension process for those attorneys on the list. For more information, call MCLE at (505) 821-1980; e-mail [email protected], or write to MCLE, PO Box 93070, Albuquerque, NM 87199.

MCLE 2013 Annual Compliance Reports

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We are pleased to announce that

Daniel P. Estesis now an associate attorney at our Firm.

We are currently accepting referrals in the areas of appeals and appellate law, civil rights, employment law, and personal injury.

1001 Gold Avenue SW, Albuquerque, NM 87102Telephone: (505) 242-9311 • Facsimile: (505) 242-6225

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ClassifiedPositions Senior Trial Attorney

The 13th Judicial District Attorney’s Office is accepting resumes for an experienced Attor-ney to fill the position of Senior Trial Attorney in the Cibola (Grants), Sandoval (Bernalillo) or Valencia (Belen) County Offices. This position requires substantial knowledge and experience in criminal prosecution, rules of criminal procedure and rules of evidence, as well as the ability to handle a full-time com-plex felony caseload. Admission to the New Mexico State Bar and a minimum of five years as a practicing attorney are also required. Salary commensurate with experience. Send resumes to Kathleen Colley, District Office Manager, P.O. Box 1750, Bernalillo, NM 87004 or via E-mail to [email protected] Deadline for submission: Open until filled.

City AttorneyThe City of Rio Rancho seeks to fill the posi-tion of City Attorney. The City Attorney is a City Charter position in a Council – Manager form of government. The City Attorney pro-vides legal counsel to the Governing Body, the City Manager, and all City departments, boards and commissions, as well as represents the City in all legal proceedings. The posi-tion supervises a Deputy City Attorney, two Assistant City Attorneys, and two legal tech-nicians. The position requires a significant ability to deal with complex, controversial issues of law and policy in representing the state’s third largest city. Experience in a wide range of municipal law, land use law, labor and personnel law, contracts and public finance is critical. The position requires a Juris Doc-tor from an accredited university, a license to practice in New Mexico, seven years of relevant experience, and a minimum of three years of relevant supervisory experience. The City Attorney is selected by the City Manager and approved by the City’s Governing Body. Salary is dependent upon qualifications, with a general range of $104,000 to $130,000 per year. The City also provides an excel-lent benefit package. To apply: Please email a cover letter, resume and salary history to [email protected]. The job posting may be viewed at ci.rio-rancho.nm.us/Employment/Career Center and will close on 3/17/14.

Associate AttorneyLightning Legal Group is expanding and in need of an attorney with experience serving the people of New Mexico with family law issues. Please fax resume and salary history to 866.319.3058. All inquiries maintained as strictly confidential.

Are You Tired of Living by the Billable Hour? Would You Like to Get Into Court?The New Mexico Human Services Depart-ment (HSD), Child Support Enforcement Di-vision (CSED) seeks to fill attorney positions throughout the State. You can join a team of professionals, help your fellow citizens, and practice law without the complication of fill-ing out timesheets. With CSED, you represent HSD to establish paternity, prepare and nego-tiate appropriate support orders and enforce child support obligations. These positions involve review, preparation and trial of cases in child support hearings in district court and administrative courts and/or the direction of staff in preparation of legal documents. These positions will provide advice on poli-cies and programs in furtherance of strategic goals. CSED positions currently available are: Attorney – A (Advanced) in Roswell, New Mexico; Attorney – A (Advanced) in Alamogordo, New Mexico; Attorney – O (Operational) in Farmington, New Mexico; Attorney – O (Operational) in Santa Fe, New Mexico; Attorney – O (Operational) in Rio Rancho, New Mexico; Attorney – O (Opera-tional) in Las Vegas, New Mexico; Attorney – O (Operational) in Clovis, New Mexico; Attorney – O (Operational) in Roswell, New Mexico. All attorney positions with HSD require a Juris Doctorate, admission to the New Mexico Bar, and the appropriate legal experience. Salary ranges for an Attorney – A (Advanced) are $20.93 to $37.20/hr and Attorney – O (Operational) are $18.54 to $32.96/hr. To apply: access the website: www.spo.state.nm.us and click on Apply for a State Government job. The State of New Mexico is an Equal Opportunity Employer. WHY WORK FOR CSED? You make a difference in people’s lives!

Assistant Trial Attorney/ Senior Trial Attorney Taos CountyThe Eighth Judicial District Attorney’s Office is accepting applications for an Assistant Trial Attorney or Senior Trial Attorney in the Taos Office. The position will be responsible for a felony caseload and have at least two (2) to four (4) years as a practicing attorney in criminal law. This is a mid-level to an advanced level position. Salary will be based upon experience and the District Attorney Personnel and Compensation Plan. Please send interest letter/resume to Daniel L. Romero, Chief Deputy District Attorney, 105 Albright Street, Suite L, Taos, New Mexico 87571 or [email protected].

Lawyer PositionGuebert Bruckner P.C. seeks an attorney with up to five years experience and the desire to work in tort and insurance litigation. If inter-ested, please send resume and recent writing sample to: Hiring Partner, Guebert Bruckner P.C., P.O. Box 93880, Albuquerque, NM 87199-3880. All replies are kept confidential. No telephone calls please.

Visit the State Bar of New Mexico’s website

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Entry Level Associate AttorneyThe Deschamps Law Firm, LLC, in Socorro, NM has an opening for an entry level associate attorney. Must relocate to Socorro area. Please submit resume to [email protected] or to P.O. Drawer 389, Socorro, NM 87801.

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 Janetta B. Hicks, District Attorney, 400 N. Virginia Ave., Suite G-2, Roswell, NM 88201-6222 or e-mail to [email protected].

Two Full Time PositionsWILLIAM F. DAVIS & ASSOC., P.C. a law firm located in North East Albuquerque, is accepting applications for two full time positions. Our practice consists primarily of Chapter 7, 11 & 13 bankruptcy proceed-ings and general business and commercial litigation. Our firm offers competitive salary, excellent benefits and a positive work envi-ronment. Positions are available immediately. ASSOCIATE ATTORNEY – with 3 to 5 years experience in bankruptcy, commercial law, and litigation. Candidates should have a strong academic background, and excellent writing and research skills and be licensed in New Mexico. Salary is commensurate with experience. ATTORNEY – with 0 to 2 years experience with motivation to learn and grow in a dynamic law firm concentrat-ing in the area of bankruptcy. Candidate should be willing to work hard and learn the bankruptcy practice. Law school courses/experience in Bankruptcy, Secured Transac-tions and UCC preferred. Candidate must be licensed in New Mexico. Please send resume via email to: [email protected] and state the position you are applying for in the subject text.

13th Judicial District AttorneyAssociate Trial Attorney for Valencia CountyThe 13th Judicial District Attorney’s Office is accepting resumes for an entry level Associate Trial Attorney for the Valencia County (Belen) office. The position requires misdemeanor, juvenile and possible felony cases. Upon re-quest, be prepared to provide a summary of cases tried. Salary is based upon experience. Send resumes to Kathleen Colley, District Office Manager, PO Box 1750, Bernalillo, NM 87004 or via E-Mail to: [email protected] Deadline for submission of resumes: until position is filled.

City AttorneyThe City of Roswell, NM is seeking a City Attorney with knowledge of state statutes relating to municipal affairs. Graduation from an accredited law school with a Juris Doctor degree, and six (6) years’ increasingly responsible professional legal experience. Two (2) years directly associated with government operations preferred. Application and de-tailed job description for this position is avail-able on our website at www.roswell-nm.gov. Applications can be faxed to 575-624-6926 or e-mailed to [email protected]. Deadline to apply is 5:00 pm, March 14, 2014.

Request For Qualifications (RFQ) for Legal ServicesThe Estancia Valley Solid Waste Authority, Special District of the State of New Mexico (Authority) will open sealed presentations on Tuesday, March 18, 2014 at 2:00 p.m. at the Authority Main Office, 515 Allen Street, Estancia, New Mexico 87016. Presentation Forms and specifications may be obtained from the Authority Main Office, or by email request to: [email protected]. Mailed presentations should be addressed to the Manager, Estancia Valley Solid Waste Au-thority, P.O. Box 736, Estancia, New Mexico 87016 with the envelope marked: “SEALED RFQ FOR LEGAL SERVICES”, on the lower left hand corner of the envelope (faxed or emailed presentations will not be accepted). It shall be the responsibility of the person(s) submitting a presentation to see that their presentation is delivered to the Manager’s office by the date and time set for this RFQ. If the mail or delivery of the presentation is delayed beyond the opening date and time, the presentation thus delayed will not be considered. A public opening will be held and any person submitting a presentation or their authorized representative is invited to attend. The Authority reserves the right to accept or reject any/or all offerings. Estancia Valley Solid Waste Authority. /S/ Joseph Ellis, Manager

Associate Attorney OpportunitySeeking attorney with 4 years or more expe-rience to join our bankruptcy, commercial litigation, real estate, estate planning and tax practice. Candidate must possess exceptional interpersonal skills, legal research and writ-ing skills, written and verbal communication skills, a strong work ethic and the ability to work both independently and in a team environment, including some supervision of attorneys and support staff. Must be able to perform work of the highest quality. Court appearances will be required. We are look-ing for a long term relationship and terms of employment will include possibility of acquiring ownership. Qualified candidates should e-mail resume’ and cover letter stat-ing reasons for interest and salary/benefits requirements, salary history and references to Office Manager, The Law Office of George Dave Giddens, P.C. Fax: (505) 271-4848; [email protected]. Deadline to apply is April 1, 2014.

AttorneyThe Pueblo of Laguna is accepting applica-tions for an attorney position. Interested candidates must visit our website at www.lagunapueblo-nsn.gov for minimum require-ments, applications and instructions.

Attorneys Needed for 2 Openings1 requires litigation exp. for trials, court hear-ings, mediations, discovery...2nd attorney, 0-5 yrs exp. Must be able to multi-task in a high volume, fast paced reputable, growing law firm rep. numerous nationwide bank-ing clients. Nice office in the Journal Center area. Good benefits (hol, vac, sick, health, dent, retir. & more). Submit in conf. cover letter, resume, sal hist & req to [email protected]

AssociatesDon’t miss out on this outstanding oppor-tunity to join a PREMIER regional Civil Litigation Law Firm! This firm, comprised of three Texas offices, seeks three Associates to join their office in Albuquerque, New Mexico. Requirements include 5 plus years of defense litigation experience and a license to practice law in the state of New Mexico. The firm’s high volume and complex litigation docket will require you to be highly motivated and able to assist and support a busy litigation team in large and complex litigation cases and trials. Must have excellent tenure and some travel required. Paying up to $120K base plus bonuses and exceptional benefits. Please contact Bertha Fonseca @ 915-779-3779

AttorneyConklin, Woodcock & Ziegler, P.C. is seeking a full-time experienced attorney (our prefer-ence is 3-10 years of experience). We are a growing eight-attorney civil defense firm that practices in the following areas: labor and employment, personal injury, medical mal-practice, commercial litigation, civil rights, professional liability, insurance defense and insurance coverage. We are looking for a team player with litigation experience, a solid academic and work record, and a strong work ethic. Our firm is AV-rated by Martindale-Hubbell. All replies will be kept confidential. No telephone calls please. Interested indi-viduals should e-mail a letter of interest and resumes to [email protected]




http://www.roswell-nm.gov





http://www.lagunapueblo-nsn.gov

http://www.lagunapueblo-nsn.gov



Office Space

Special Offices for Lease Now5th/Tijeras just 1/2-4 blocks to downtown firms, Courts, City/County. Large, medium & 2 moderately sized offices, all well- furnished for lawyers. From $300-1300. Ilene greets your visitors & serves refreshments in spa-cious waiting area, & answers calls to your phone #. On-site parking; 14 & 8 seat conf rooms;high-speed copier, scanner, fax using your client codes. Filtered water, refrigerator & microwave. 7 firms enjoy referrals & col-legiality. Ron Morgan @ 220-0480

Services

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

Website ServicesDo you need a website, better website, more clients? Our internet marketing service is by an attorney for attorneys. Complete website packages starting at $350 a month. www.legalmarketingguru.com Call today 1-855-487-8101

ParalegalExperienced mature paralegal seeks part-time or contract work in Santa Fe. Please contact Tish Gallarda at (505) 603-7442 or [email protected]. Resume and excellent written refer-ences will be provided.

Positions Wanted

Litigation ParalegalHinkle Law Firm in Santa Fe seeking litiga-tion paralegal. Experience (2-3 years) re-quired in general civil practice, including la-bor and employment, insurance defense, and professional malpractice defense. Candidates should have excellent writing and research skills, and the ability to work independently. Paralegal certificate or degree is necessary. Those who do not meet this criteria need not apply. Competitive salary and benefits. All inquires kept confidential. Santa Fe resi-dent preferred. E-mail resume to: [email protected]

Paralegal – Flexible Part Time Position Civil law firm seeks paralegal with 2-3 year’s experience in general civil practice. Candidate should have a superior command of filing procedures in New Mexico State and Federal Courts, be able to work independently from direct supervision and on occasionally de-manding timelines. Paralegal certificate or degree is necessary. We offer a relaxed work environment and a f lexible schedule that will allow applicants to work around family, school or other commitments. Deadline to apply is March 31, 2013. Please send all CON-FIDENTIAL resumes, references and Email cover sheet to: [email protected]

Medical ParalegalAllen, Shepherd, Lewis & Syra, P.A. is seeking a paralegal with at least five years experience requesting, reviewing and summarizing medical records. Other primary duties in-cluding drafting documents, locating indi-viduals, conducting research for attorneys, and requesting and organizing documents for use at depositions and trials. Must have knowledge of medical terminology and be familiar with prescription medications. Must know how to prepare medical chronologies, medical expense itemizations and other related documents. Responsible for commu-nicating with various internal and external parties, maintaining electronic databases, and providing support to other employees as requested. Employer offers a generous benefits package. Please send resume with cover letter to Allen, Shepherd, Lewis & Syra, P.A. Attn: Human Resources, P. O. Box 94750, Albuquerque, NM 87199-4750. All replies will be kept confidential. EOE.

Proposals to Provide Bond Counsel ServicesThe Albuquerque Bernalillo County Water Utility Authority Purchasing Office is seeking proposals to provide bond counsel services by the designated times and dates: RFP #: P2014000051. Description: P2014000051, Bond Council Services. Due by Date and Time: 04/02/2014 5:00 PM. Proposal forms and information can be accessed at http://www.abcwua.org/solicitations.aspx. For additional information or questions contact the ABCWUA Purchasing Office at (505) 768-3504.

ParalegalStiff, Keith & Garcia, LLC, a successful insur-ance defense firm, seeks sharp energetic para-legal. Must be a self-starter, detail-oriented, organized, and have excellent communica-tion skills. A four-year degree or paralegal degree, and insurance defense and/or per-sonal injury experience required. Bilingual in Spanish a plus. Please e-mail your resume and list of references to [email protected].

Full-Time Receptionist/ Legal SecretarySmall busy law firm seeking experienced, full-time Receptionist/Legal Secretary, knowledge of Microsoft Word necessary. Salary negotiable. Send Resume to Margo Danoff, Office Manager, 1225 Rio Grande Blvd. NW, Albuquerque, NM 87104, Fax to (505) 266-4330 or email to [email protected].

Associate Attorney PositionRiley, Shane & Keller, P.A., an Albuquerque AV-rated defense firm, seeks an Associate to help handle our increasing case load. We are seeking a person with one to five years experience. Candidate should have a strong academic background as well as skill and interest in research, writing and discovery support. Competitive salary and benefits. Please fax or e-mail resumes and references to our office at 3880 Osuna Rd., NE, Albu-querque, NM 87109 c/o Office Manager (fax) 505-883-4362 or [email protected]

All advertising must be submitted via e-mail by 4 p.m. Wednesday, two weeks prior to publication (Bulletin publishes every Wednesday). Advertising will be accepted for publication in the Bar Bulletin in accordance with standards and ad rates set by the publisher and subject to the availability of space. No guarantees can be given as to advertising publication dates or placement although every effort will be made to comply with publication request. The publisher reserves the right to review and edit ads, to request that an ad be revised prior to publication or to reject any ad. Cancellations must be received by 10 a.m. on Thursday, 13 days prior to publication.

For more advertising information, contact:

Marcia C. Ulibarri at 505-797-6058 or e-mail [email protected]

SUBMISSION DEADLINES


http://www.legalmarketingguru.com

http://www.legalmarketingguru.com


http://www.abcwua.org/solicitations.aspx

http://www.abcwua.org/solicitations.aspx





Office Spaces for LeaseTwo attractive office spaces for lease in the downtown Abq historic Hudson House. Rent includes telephone, equipment, access to fax, copier, conference rooms, parking, library, and reference materials. Referrals and co-counsel opportunities. For more information, call the offices of Leonard DeLayo at 505-243-3300, ask for Meg.

Full Service Office Available NowAll inclusive offices now available by the hour, day or month conveniently located in Albu-querque at I-25 & Paseo. Call Joy Davis at 796-9600 for tour. www.officealternatives.com www.facebook.com/officealternatives.com

Law Office for RentLaw Office for rent in larger office with two other attorneys. Office only for $375 per month. Other items including internet, telephone, fax, available (price negotiable) if needed. No lease requirement. Front door parking. Located at 8010 Menaul NE (two blocks west of Wyoming). Call: Hal Simmons, 299-8999

Miscellaneous

Will SearchI am searching for a Last Will and Testament of Kiet Truong. Anyone with knowledge of such a document please contact the Law Of-fice of Benjamin Hancock at 505-508-4343, or via e-mail at [email protected].

Office Space for RentThe space consists of two large offices, recep-tion area, storage, private bathroom located on the second floor of the Lynn Building on Wyoming near Menaul. Approximately 700 sq ft. of space, front and rear parking. $600/mo. plus utilities. Contact Crystal or Gerald for further information: 248-1828

Law Office Furniture For SaleDowntown Santa Fe law office with high qual-ity office furniture to sell. Lateral file cabinets, wood and metal bookcases and shelves, desks, office and guest chairs, and other office fur-nishings. Contact Sharon Monsey for details: 505-986-0600, Extension 1105.

Historic Adobe Office for RentHistoric Adobe Office for rent in the heart of the Railyard in Santa Fe. 2000 square feet of office space with offices for two attorneys, a staff person or two, conference room with fireplace. Wall to wall bookshelves. Plenty of off street parking. If interested contact, James at 992-3456.

Outdoor Art Sale SAT. MARCH 22, 10am – 2pm 2204 Via Se-ville Rd., NW, ¼ mile north of Indian School, off of Rio Grande in “The Meadows.” Randall Biggers 366-3525

Full Service Offices Downtown-PLAZA 500Includes furniture, telephone, high speed internet, conference rooms, training room, executive lounge, receptionist and parking. Located in the Class A, 22-story Albuquer-que Plaza located next to the Hyatt Regency. Starting at $600 monthly. 505-944-9090. ABQPlaza500.com.

For whatever you purchase or pay, from bar licensing fees to advertising, you are now receiving invoices and statements by email.

PAPERLESS Billing

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http://www.facebook.com/officealternatives.com



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

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505-797-6058 • [email protected]

March 12, 2014 • Volume 53, No. 11 - nmbar.org · PDF file2014-NMCA-014, No. 32,719:...

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Transcript of March 12, 2014 • Volume 53, No. 11 - nmbar.org · PDF file2014-NMCA-014, No. 32,719:...