Articles Posted in Civil Procedure

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Petitioner League of Women Voters of New Mexico sought a writ of mandamus directing Respondent Advisory Committee to the New Mexico Compilation Commission, to effectuate the compilation of three constitutional amendments to the so-called “unamendable section” of the New Mexico Constitution. Article VII, Sections 1 and 3 of the New Mexico Constitution set forth the elective franchise; the two provisions work in tandem to establish and guarantee the right to vote. Section 1, among other things, identifies who is qualified to vote; and Section 3 protects the right from being “restricted, abridged or impaired on account of religion, race, language or color, or inability to speak, read or write the English or Spanish 9 languages . . . .” To protect the elective franchise even further, the framers declared in two separate constitutional provisions that Article VII, Sections 1 and 3 “shall never be 12 amended except upon a vote of the people of this state in an election at which at least three-fourths of the electors voting in the whole state . . . shall vote for such amendment.” The proposed amendments to Article VII, Section 1 were submitted to the electorate in 2008, 2010, and 2014, and each received more than a majority, but less than a three-fourths super-majority, of the vote. The Compilation Commission did not compile the amendments into the Constitution. Petitioner asked the New Mexico Supreme Court to clarify that under a separate constitutional provision, the 2008, 2010, and 2014 amendments required the approval of only a simple majority of the voters. Respondent took no position on the merits of the question presented, but asked that the Court deny the petition on the grounds that Respondent was not a proper party. After full briefing by the parties and by numerous amici curiae and after hearing oral arguments, the Supreme Court granted the petition and issued a writ of mandamus as requested by Petitioner. View "New Mexico ex rel. League of Women Voters v. Advisory Comm. to the N.M. Compilation Comm'n" on Justia Law

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Edward McElveny (McElveny) died intestate in 1991. In April 2013, McElveny’s grandson, Michael Phillips, filed an application with the Santa Fe County Probate Court (Probate Court) to be informally appointed personal representative (PR) of McElveny’s estate. In his application, Phillips noted that the Department of Taxation and Revenue had custody of approximately $70,000 (the Property) that belonged to McElveny and which the Department held as unclaimed property. Phillips asked the Probate Court to order the Department to release the Property to him as PR. The Probate Court granted Phillips’ request, appointed him PR, and ordered the Department to release the Property to him. Phillips then filed an unclaimed property claim with the Department. Phillips left the claim form blank and attached to the blank claim form a copy of the Probate Court’s order. In June 2013, the Department wrote to Phillips, acknowledged receipt of his claim, but informed Phillips that it was “incomplete.” Phillips responded by letter, protested that he had submitted all documentation the Department required to process and approve his claim. The Department did not reply and did not release the Property. In August 2013, the Probate Court transferred the case to the First Judicial District Court. Phillips filed a motion with the district court asking it to enforce the Probate Court’s order and to issue sanctions against the Department. The Department moved to dismiss the proceedings and argued that the district court lacked subject matter jurisdiction because Phillips failed to exhaust administrative remedies. Phillips responded and claimed that the exhaustion doctrine was inapplicable because he was “not suing the Department, i.e.[,] not attempting to obtain subject matter jurisdiction over the Department for the purpose of stating a claim.” The New Mexico Supreme Court held that the administrative claim filing provisions of the Uniform Unclaimed Property Act (UPA)were exclusive and mandatory and that individuals wishing to procure unclaimed property must exhaust the administrative remedies afforded them by the Act. Consequently, estate representatives like Phillips cannot circumvent the UPA’s claim filing provisions by invoking provisions of the Uniform Probate Code 11 (UPC). Although Phillips did not exhaust administrative remedies under the UPA, it the Court determined it was unnecessary to remand for further administrative proceedings, and ordered the Department to release to Phillips the unclaimed property in its custody that belonged to the estate. View "In re Estate of McElveny" on Justia Law

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Petitioners who pursue the recall of a local school board member under the Recall Act are entitled to the procedural protections of the New Mexico statute prohibiting strategic litigation against public participation (Anti-SLAPP statute). This dispute arose out of a malicious abuse of process claim made by Taos school board member Arsenio Cordova (Cordova) against eighteen members of an unincorporated citizens’ association (collectively, Petitioners) following their efforts to remove Cordova from office under the Local School Board Member Recall Act (Recall Act). The New Mexico Supreme Court concluded that petitioners were entitled to immunity under the Noerr-Pennington doctrine when they exercise their right to petition unless the petitioners: (1) lacked sufficient factual or legal support; and (2) had a subjective illegitimate motive for exercising their right to petition. View "Cordova v. Cline" on Justia Law

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Kimberly Montano, a New Mexico resident, sought bariatric surgery for her obesity in early 2004. At that time Eldo Frezza, M.D. was the only doctor from whom Montano could receive that surgery and still be covered by her insurer. Montano believed that she needed the procedure and that she could not afford it without medical insurance coverage. Dr. Frezza was employed as a bariatric surgeon and professor and served as chief of bariatric surgery at Texas Tech University Health Sciences Center in Lubbock, Texas. The issue this case ultimately presented for the New mexico Supreme Court’s review was whether a New Mexico resident who had been injured by the negligence of a state- employed Texas surgeon name that surgeon as a defendant in a New Mexico lawsuit when Texas sovereign immunity laws would require that the lawsuit be dismissed. The Court initially presumed that comity should be extended because cooperation and respect between states was important. “However, this presumption is overcome and a New Mexico court need not fully extend comity if the sister state’s law offends New Mexico public policy” In this case, the New Mexico Court applied the Texas provision requiring that the case against the surgeon be dismissed because do View "Montano v. Frezza" on Justia Law

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Petitioner and Albuquerque resident David Crum was registered to vote in New Mexico as a qualified voter who declined to designate or state his political party affiliation (DTS). He sought to vote during the 2014 primary election by selecting either a Democratic or a Republican ballot without having to amend his voter registration. Crum was not permitted to vote during the June 3, 2014 primary election because he was not registered as either a Democrat or a Republican1 on or before May 6, 2014. Crum contended that the Free and Open Clause of Article II, Section 8 of the New Mexico Constitution entitled him to vote during primary elections without registering with a major political party because he was a qualified voter under Article VII, Section 1. The Supreme Court disagreed: “[a]lthough the Free and Open Clause is intended to promote voter participation during elections, the Legislature has the constitutional power to enact laws that ‘secure the secrecy of the ballot and the purity of elections and guard against the abuse of [the] elective franchise.’” The Supreme Court therefore affirmed the district court’s dismissal of Crum’s complaint for failing to state a claim upon which relief could be granted. View "Crum v. Duran" on Justia Law

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The issue this case presented for the New Mexico Supreme Court’s review was whether a 2009 default foreclosure judgment could be collaterally attacked based on assertions that the judgment was void for lack of jurisdiction and procured by fraud. In this case, those assertions were made by Phoenix Funding, LLC, which attempted to overturn a settled foreclosure judgment entered in favor of Aurora Loan Services, LLC. The Supreme Court held that the 2009 default judgment was not void and that Phoenix’s fraud claim was procedurally barred. The Court reversed the Court of Appeals’ judgment, reinstated the district court’s grant of summary judgment to Aurora, and remanded the case to the district court with instructions to dismiss Phoenix’s fraud claim. View "Phoenix Funding, LLC v. Aurora Loan Servs., LLC" on Justia Law

Posted in: Civil Procedure

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New Mexico Rule of Evidence 11-410 NMRA stated that evidence of a nolo contendere plea made in settlement of a criminal proceedings was not admissible in civil proceedings against a defendant making such a plea. In this case, the issue presented for the New Mexico Supreme Court's consideration was whether evidence of a nolo plea was admissible in a civil case for misrepresentation where the plaintiffs sought to introduce a nineteen-year-old nolo plea of one defendant to support an argument that the defendant fraudulently failed to disclose his nolo plea during the formation of a joint business venture. The Court held that evidence of the nolo plea was inadmissible under both the express terms and the underlying purpose of Rule 11-410(A)(2), and the Court affirmed the district court’s grant of summary judgment on that basis. The Court reversed the Court of Appeals which held to the contrary. View "Kipnis v. Jusbasche" on Justia Law

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The issue presented for the Supreme Court's review giving rise to this case was a collateral of the underlying judgment. Specifically, the issue was whether it was apparent on the face of a 1948 quiet title judgment that the district court affirmatively lacked jurisdiction over certain parties because they were notified by publication. It was alleged that in the 1948 lawsuit, such notice violated the Due Process Clause, depriving the district court of jurisdiction. Only when a party’s whereabouts are not reasonably ascertainable following diligent search and inquiry can constructive notice substitute for personal notice of suit. The Supreme Court found that constructive service of process by publication satisfied due process and established the 1948 district court’s personal jurisdiction. Therefore, the district court’s 1948 quiet title judgment was not void, and, accordingly, the Supreme Court reversed the judgment of the Court of Appeals which held to the contrary. View "T.H. McElvain Oil & Gas Ltd. P'ship v. Benson-Montin-Greer Drilling Corp." on Justia Law

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In this appeal, the issue presented for the New Mexico Supreme Court's review centered on the scope of the New Mexico State Engineer’s regulatory authority over use of surface water in New Mexico when it has been diverted from the Animas River into an acequia in Colorado and accessed from that ditch by Petitioners and others in New Mexico. After review, the Court rejected petitioners’ arguments that the State Engineer lacked statutory authority over waters initially diverted outside of New Mexico and had no jurisdiction to enjoin petitioners from irrigating an area of farmland not subject to an existing adjudicated water right or a permit from the State Engineer. The Court held that the State Engineer was authorized by New Mexico law to require a permit for new, expanded, or modified use of this water and to enjoin any unlawful diversion. View "State Engineer v. Diamond K Bar Ranch, LLC" on Justia Law

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Lenard E. Noice worked as a conductor for Petitioner BNSF Railway Company (BNSF). He fell from a BNSF train that was moving at speed and perished. Respondent, Lenard Noice II, acting as personal representative for Noice (the Estate), filed a wrongful death action against BNSF under the Federal Employee’s Liability Act (FELA), asserting, among other claims, that BNSF negligently permitted the train from which Noice fell to operate at an excessive speed. The undisputed facts established that the train from which Noice fell never exceeded the speed limit for the class of track upon which it was operating. BNSF moved for summary judgment arguing that the Estate’s FELA excessive-speed claim was precluded by the Federal Railroad Safety Act (FRSA). The district court accepted this argument and dismissed the Estate’s FELA claim. The Court of Appeals reversed, concluding that FRSA did not preclude a FELA excessive-speed claim. Because FRSA contained no provision expressly precluding the Estate’s FELA excessive-speed claim and because permitting the Estate’s FELA claim to proceed furthered the purposes of both statutes, the New Mexico Supreme Court affirmed the Court of Appeals. View "Noice v. BNSF Ry. Co." on Justia Law